Overseas Compensated Surrogacy Arrangements and the Family Court of Australia Adiva Sifris

Overseas Compensated Surrogacy Arrangements and the Family Court of Australia What about the Children?

Adiva Sifris*

Introduction

Throughout Australia (save for the Northern Territory) legislation has been introduced recognising and regulating altruistic surrogacy arrangements and prohibiting compensated surrogacy arrangements.1 In three jurisdictions—the Australian Capital Territory, New South Wales, and Queensland—extraterritorial prohibitions placed on these arrangements make entering into an overseas compensated surrogacy arrangement an offence.2 Nevertheless, couples who are desperate to raise children are entering into overseas compensated surrogacy arrangements. In circumstances where one or both of the couple are biologically related to the child, ‘citizenship by descent’ allows them to return with the child to live in Australia.3

While the regulation of surrogacy arrangements and legal parentage of children fall within the legislative powers of the states and territories, the determination of parentage for Commonwealth purposes is regulated through the Family Law Act 1975 (Cth) (‘FLA’). As compensated surrogacy arrangements are not recognised at a state or territory level and thus provisions transferring parentage from the surrogate to the intended parents are limited to altruistic surrogate arrangements, it is generally accepted that the provisions in the FLA recognising the transfer of legal parentage are confined to altruistic surrogacy arrangements and exclude compensated surrogacy arrangements.4 The question then arises: who are the legal parents of children born through compensated surrogacy arrangements?

The Full Court of the Family Court Has Its Say

Prior to the decision of Bernieres v Dhopal (‘Bernieres’), 5 primary judges had adopted various approaches to this issue. In some instances, the intending biological father was declared a legal parent,6 in others, orders were made for the intending parents to have parental responsibility,7 and in still others, the matter was referred to the Director of Public Prosecutions.8

Mr and Ms Bernieres were a married couple who had entered into a compensated surrogacy arrangement in India. A child born as a result of this arrangement was conceived using Mr Bernieres’ sperm and the egg of an anonymous donor. The child was granted Australian Citizenship by descent and issued with an Australian passport. The Bernieres’ applied to the Family Court for declarations of parentage. The trial judge refused to make such an order and instead made orders for the parties to have parental responsibility for the child.9 Significantly, whilst making these orders, Berman J recognised the unsatisfactory predicament for all parties concerned and flagged ‘the clear need for … legislative change’.10

Dr Adiva Sifris is an Associate Professor in the Faculty of Law at Monash University and Director of Clinical Units in the Faculty of Law. She researches and teaches across all areas of family law, family violence and legal education.

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10 Parentage Act 2004 (ACT) s 41; Surrogacy Act 2010 (NSW) s 8; Surrogacy Act 2010 (Qld) s 56; Surrogacy Act 2019 (SA) s 11; Surrogacy Act 2012 (Tas) s 40; Assisted Reproductive Treatment Act 2008 (Vic) s 44(1); Surrogacy Act 2008 (WA) s 8. For a detailed description and comparison of the legislation in the various states and the Australian Capital Territory. See Ronli Sifris, Karinne Ludlow and Adiva Sifris ‘Commercial Surrogacy: What Role for Law in Australia?’ (2015) 23(2) Journal of Law and Medicine 275. Parentage Act 2004 (ACT) s 45; Surrogacy Act 2010 (NSW) s 11; Surrogacy Act 2010 (Qld) s 54(b). See Australian Government Department of Home Affairs, ‘International Surrogacy Arrangements’, Immigration and Citizenship (Web Page, 5 March 2020) <https://immi.homeaffairs.gov.au/citizenship/become-a-citizen/by-descent/ international-surrogacy-arrangements>. See, eg, Ellison v Karnchanit [2012] FamCA 602; Bernieres v Dhopal [2017] FamCAFC 180 (‘Bernieres’). Bernieres (n 4). See Green-Wilson v Bishop [2014] FamCA 1031. See Mason v Mason [2013] FamCA 424. See Dudley v Chedi [2011] FamCA 502. See below for discussion on parental responsibility. Bernieres (n 4) [147] (Berman J).

11 For a detailed discussion of this case see

Ronli Sifris and Adiva Sifris, ‘Parentage,

Surrogacy and the Perplexing State of

Australian Law: A Missed Opportunity’ (2019) 27(2) Journal of Law and Medicine 369. 12 [2016] FCWA 17, [365] (Thackray CJ). 13 It should be noted that there have been instances where where orders have been made registering Court Orders made in the

USA naming the intended parents as the parents: see Sigley v Sigley [2018] FamCA 3 (Forrest J). Conversely, there have been instances where the court has refused to make such orders: see Allan v Peters [2018]

FamCA 1063; Rose [2018] FamCA 978 (Carew J). 14 See Rebecca Puddy, ‘Commercial Surrogacy Debated as UN Envoy Prepares Final

Report on the Rights of the Child’, ABC

News (online, 29 June 2019) <https://www. abc.net.au/news/2019-07-29/push-to-simplify-international-commercial-surrogacy/11303164?nw=0>. 15 Convention for the Protection of Human

Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

See Mennesson v France [2014] III Eur Court

HR 255; Labassee v France (European Court of Human Rights, Chamber, Application No 65941/11, 26 June 2014); Foulon and Bouvet v France (European Court of Human Rights,

Chamber, Application Nos 9063/14 and 10410/14, 21 July 2016). 16 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’). 17 CRC (n 16) art 35; Optional Protocol to the

Convention on the Rights of the Child on the

Sale of Children, Child Prostitution and Child

Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (entered into force 18

January 2002) art 1 (‘Optional Protocol’).

Article 2(a) of the Optional Protocol states:

‘Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.’ 18 See, eg, John Tobin, ‘To Prohibit or to Permit: What is the (Human) Rights

Response to the Practice of International

Commercial Surrogacy?’ (2014) 63(2) International and Comparative Law Quarterly 317, 335–338. Cf Jason KM Hanna, ‘Revisiting

Child-based Objections to Commercial

Surrogacy’ (2010) 24(7) Bioethics 341; Paula

Gerber and Katie O’Byrne, ’Souls in the

House of Tomorrow: The Rights of Children

Born via Surrogacy’ in Paula Gerber and

Katie O’Byrne (eds), Surrogacy, Law and

Human Rights (Ashgate, 2015) 81. 19 CRC (n 16) art 3(1). Other relevant articles in the CRC include: art 3(2) protection from harm; art 7 the right to know and be cared for by his or her parents; art 5 the importance of family; art 10 separation from parents; and art 18 role of family in child’s upbringing. 20 See Samantha Besson, ‘The Principle of

Non-Discrimination in the Convention on the

Rights of the Child’ (2005) 13(4) The International Journal of Children’s Rights 433. 21 Affidavit of Sadie Rose Epstein, Sworn 19

March 2005 at paras 15 and 16. Applicant’s factum Rutherford v Deputy Registrar

General for the Province of Ontario, Ontario

Superior Court of Justice, Family Court, File

Number 05-FA-13357 which is on file with the author. Referred to in AA v BB (2007)

DLR (4th) 519 [15].

On appeal to the Full Court of the Family Court this order was confirmed. The reasoning of the Full Court in reaching this conclusion is beyond the scope of this article, but the reality is that following the decision of the Full Court in Bernieres, avenues for establishing legal parentage of children born through compensated surrogacy arrangements appear to be closed. Applying to the Family Court for orders for parental responsibility appear to be the only remaining option for intended parents of children born via these arrangements.11

If the intending parents are not recognised as the legal parents of this child, the question then arises: who are the legal parents of this child? In some instances, such as Farnell v Chanbua12 (decided prior to Bernieres), Thackray CJ, relying on Western Australian legislation, decided that the surrogate and her partner were the legal parents of the child. However, in Bernieres, the Court was not prepared to fill the legislative vacuum and orders were made for parental responsibility, essentially leaving the child ‘parentless’.13 Realistically, the intention of the parties when entering into a surrogacy arrangement is to divest the surrogate (and her partner if she has one) of the responsibility of parentage and to bestow these responsibilities on the intending parents. This brings us to our next question: why is legal parentage important?

iii What about the Children? a Children’s Rights Issue

According to Stephen Page, up to 250 Australian children are born through overseas compensated surrogacy arrangements each year.14 The European Court of Human Rights has expressed its disapproval of States failure to recognise the legal relationship between children born through international surrogacy arrangements and their genetically related intended fathers as a violation of art 8 (Right to respect for private and family life) of the European Convention of Human Rights.15 However, discussion of compensated surrogacy from the perspective of the rights of the child invariably focuses on the United Nations Convention on the Rights of the Child (‘CRC’),16 particularly Art 35 of the CRC and Art 1 of its Optional Protocol which prohibit the sale of children.17 Whether compensated surrogacy arrangements fall within the definition of ‘sale of children’ is the subject of debate beyond the scope of this article.18 This contribution proceeds on the basis of the reality that an arrangement has been concluded, a child has been born, and the court is now faced with the unenviable task of determining the parentage of this child.

The CRC contains a number of other articles which are relevant to compensated surrogacy arrangements, for example, art 2(2) provides that State Parties shall take appropriate measures to ensure that children are protected from all forms of discrimination on the basis of the status of their parents, legal guardians or family members, and art 3(1) makes the best interests of the child ‘a primary consideration’.19 In a contribution such as this, it is possible to only provide a ‘birds eye view’ of the detriment and discrimination which these children suffer as a consequence of the law’s failure to recognise the intended parents as the legal parents of the child. In these circumstances the main perpetrator of discrimination against these children is the State, as legislative bodies have the power to directly or indirectly discriminate. In the case of compensated surrogacy arrangements, the discrimination is indirect in that it revolves around the failure to pass legislation recognising the legal parentage of these children, thus perpetuating discrimination against them in the form of unequal treatment.20

Legal parentage provides public validation of the child’s family structure, a concept which transcends the practical consequences of orders for parental responsibility. The discrimination that is perpetrated against children when their functional parents are not recognised as legal parents is encapsulated in the following quote:

I just want both my moms recognised as my moms. Most of my friends have not had to think about things like this – they take for granted that their parents are legally recognised as their parents. I would like my family to be recognised the same way as any other family, not treated differently because both my parents are women.21

It is suggested, that although this quote deals with children raised in same-sex families, it is equally relevant to children born through compensated surrogacy arrangements. From the children’s rights perspective, it is hard to justify why a child born as a result of a compensated surrogacy arrangement should be treated differently to a child conceived through an altruistic surrogacy arrangement.

Whilst the Family Court routinely makes orders for parental responsibility and such orders will allow the intended parents to raise the child, such orders are of limited effect. Most importantly, unlike legal parentage which lasts forever, orders for parental responsibility automatically terminate when a child turns 18. Consequently, unless legal parentage is recognised, inter-generational relationships and entitlements are forfeited. For example, in the law of succession, rights on intestacy and family provision rest on proof of kinship and will not apply to these children.

The FLA places emphasis on the importance of legal parentage. Various sections within the FLA relating to the exercise of the court’s discretion treat parents differently from non-parents, or effectively prioritise parents over others. An obvious example is the ‘primary’ consideration in the best interest checklist (s 60CC(2) of the FLA), which places the parent-child relationship ahead of all other relationships.22 From a fiscal perspective, the obligation of child support falls only on parents,23 thus, in the event the intended parents separate the obligation of child support will not fall on either parent.24 Hence, the failure of the law to recognise the intended parents as the legal parents of the child results in unsatisfactory and harmful outcomes for the child, discriminates against them, and is clearly not in their best interests.25 The Family Law Council Report explicitly acknowledges that children born via compensated surrogacy arrangements ‘can face the prospect of being unable to secure appropriate and non-discriminatory legal status’.26

Some Light at the End of the Tunnel

It is suggested that the recent High Court decision of Masson v Parsons (‘Masson’)27 may provide a legitimate avenue for the intended parents to be recognised as the legal parents. In Masson, a single man provided semen to a single woman as a result of which a child was conceived through an assisted conception procedure. When the child was born, the donor’s name was entered on the birth certificate as a parent and it was uncontroversial that over the years he had been actively involved in the life of the child providing financial and other support. The issue before the Court was whether the donor was the child’s legal parent. The state legislation is clear; the donor will not be regarded as the child’s legal parent. The federal FLA is equivocal on the issue and hence resulted in the High Court determining the matter. Whilst this case did not involve a compensated surrogacy arrangement but was rather concerned with the parentage of children born to a single woman, the case is relevant because of the High Court classification as to who should be regarded as a parent under the FLA.

In sum, in concluding that the donor was the child’s legal parent, the plurality, adopted an approach to parentage which focuses on the common-sense meaning of the term. It ‘proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning’.28 In a powerful joint judgment, the plurality asserted that unless otherwise provided, ‘there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a[nother] meaning’.29 In this case, the High Court focused on the intention of the parties at the time of conception and concluded that the donor could not be categorised as a mere ‘sperm donor’. Emphasis was also placed on the fact that the donor had since the time of the child’s birth assumed the duties and responsibilities of a parent. Thus, according to the High Court in Masson, the starting point as to who is a parent under the FLA is that the word ‘parent’ should be given its natural and ordinary meaning.

The particular facts of the case and the active involvement of the donor in the life of the child, resulted in the High Court acknowledging the donor as a parent under the FLA. By analogy, it is arguable that in the context of compensated surrogacy arrangements, the intended parents should be regarded as the child’s legal parents. The similarities are obvious, at the time of conception the parties’ clear intention is that the intended parents are the parents of the child. Moreover, when the child is born, they are the people who raise the child and function as the child’s parents. The surrogate and her partner no longer form part of the child’s immediate family.

Conclusion

Over the years, the vexed issue of compensated surrogacy arrangements has attracted the attention not only from the judiciary but also the public and government.30

22 Family Law Act 1975 (Cth) s 60CC(2). 23 Child Support (Assessment) Act 1989 (Cth) ss 3, 5. 24 See definition of parent contained in s 5 of the Child Support (Assessment Act) 1989 (Cth) which defines a ‘parent’ in relation to a child born because of a surrogacy arrangement as including ‘a person who is a parent of the child under section 60HB of the Family

Law Act 1975’. 25 For a detailed discussion of the various ways parenting orders differ from parentage orders, see Adiva Sifris, `The Family

Courts and Parentage of Children Conceived through Overseas Commercial Surrogacy

Arrangements: A Child-Centred Approach’ (2015) 23(2) Journal of Law and Medicine 396. 26 Family Law Council, Report on Parentage and the Family Law Act (Report, December 2013) 63. 27 (2019) 59 Fam LR 503 (‘Masson’). 28 Ibid 517 [44]. 29 Ibid 511 [26]. 30 See Bridget Brennan, ‘Commercial Surrogacy should be Legalised, Family Court

Chief Justice Bryant says’, ABC News (online, 18 April 2015) <www.abc.net.au/ news/2015-04-18/commercial-surrogacy-should-be-legalised-family-court-justice/6402924>.

31 Family Law Council, Report on Parentage and the Family Law Act (Report, December 2013); House of Representatives Standing Committee on Social Policy and Legal

Affairs, Parliament of Australia, Surrogacy

Matters: Inquiry into the Regulatory and

Legislative Aspects of International and

Domestic Surrogacy Arrangements (Report,

April 2016); Australian Government, Australian Government Response to the Recommendations of the House of Representatives

Standing Committee on Social Policy and

Legal Affairs Surrogacy Matters (Report,

November 2018). 32 George Brandis, ‘Terms of Reference’,

Australian Law Reform Commission (Web Page, 27 September 2017) < https://www.alrc.gov.au/inquiry/ review-of-the-family-law-system/ terms-of-reference-21/>. 33 Australian Law Reform Commission, Family

Law for the Future—An Inquiry into the

Family Law System (Final Report No 135,

March 2019) 428 [14.21]. 34 Maud De Boer-Buquicchio, Statement by the Special Rapporteur on the Sale and

Sexual Exploitation of Children, including

Child Prostitution, Child Pornography and other Sexual Abuse Material, UN GAOR, 3rd

Comm, 74th sess, Agenda Items 66(a), (b) (8

October 2019). In an attempt to resolve the parentage of the these children and other associated issues, a number of Government Reports have been commissioned.31 Most recently, in September 2017 the Australian Law Reform Commission received terms of reference to conduct a comprehensive review into the Australian family law system.32 Issues relating to surrogacy were specifically included in the terms of reference. Disappointingly, the Final Report released in March 2019 conceded the complexity of determining the parentage of children born through surrogacy arrangements and unhelpfully recommended that provisions defining parentage of these children be removed to a separate Commonwealth Parentage Act.33 This means that this unsatisfactory situation continues to exist, the functional parents of these children must settle for orders for parental responsibility rather than legal parentage, and significantly these children are discriminated against and their best interests ignored.

In a recent statement introducing the 2019 Report on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, Special Rapporteur Ms. Maud De Boer-Buquicchio stated as follows:

The international and national regulatory vacuum, as well as the existing disparity in relation to international surrogacy arrangements often leaves children born through surrogacy vulnerable to breaches of their fundamental rights. …. I have therefore recommended strict regulation and oversight mechanisms to prevent any instances of sale and exploitation of children in the context of surrogacy. If not properly regulated, surrogacy arrangements risk compromising the fundamental rights of the child to human dignity, the right to identify, including nationality, access to origins and the enjoyment of family life.34

As evidenced in this quote, if not properly regulated, compensated surrogacy arrangements can result in the exploitation of the most vulnerable members of society: our children. Consequently, those seeking to enter into these arrangements should be discouraged from venturing overseas, but an alternative must be provided on our home soil. The time is ripe for Australia to act and to introduce legislation regulating these arrangements and encouraging those who are desperate to achieve parentage to do so, but under a highly regulated domestic structure. A system that takes into account the rights of the donor/s (if applicable), the rights of the surrogate, the rights and duties of the intended parents, but most importantly the rights of the children.