Tuesday, August 11, 2009

The Australian – “Couple must battle to adopt their own son” by Caroline Overington

This article which appeared in today’s Australian illustrates the issues of who is the legal parent in the cases of Surrogacy.  It has particular relevance to same-sex parents.

A SYDNEY couple will have to apply to the NSW Supreme Court for permission to adopt their own son, after the Family Court found that, in the eyes of the law, he was not theirs.

Judge Garry Watts last week ruled that the boy's biological mother -- the woman who provided the egg and has raised him since birth -- is legally his stepsister, while his biological father -- who provided the sperm and has likewise raised him since birth, is legally his stepbrother-in-law.

The court ruled that the boy's mother is the woman who carried him in her womb: that is, his grandmother. His father, at least in the legal sense, is his grandmother's de facto, a man named Clive, who has no biological connection to him.

Justice Watts admitted that these results were "surprising" to all parties but came about because surrogacy law in NSW hadn't kept pace with science.

The issue last made headlines in 2006, when Senator Stephen Conroy announced that he and his wife had travelled from Victoria to NSW to enter into a surrogacy arrangement with a host mother, using sperm from Senator Conroy and an egg donated by a family friend.

It cost the Conroys about $50,000 to "adopt" their daughter from the surrogate mother, who had no genetic link to the child.

Victorian law has since been changed to make altruistic surrogacy arrangements legal, although commercial surrogacy remains banned. Couples must still adopt the children resulting from these arrangements, but this has become simpler in Victoria, WA and the ACT.

By comparison, there is no clear law on surrogacy in NSW, which meant the judge had to deal with the latest case, known as "Re: Michael" under the existing Family Law Act.

The case involved a couple, known in court documents only as Sharon and Paul, who were unable to conceive because Sharon had been treated for cervical cancer. Before having treatment that rendered her infertile, Sharon had her eggs harvested and stored. One of these eggs was later mixed with Paul's sperm, creating an embryo.

Sharon's mother, Lauren, offered to carry the embryo for her daughter. The child, known as Michael, was born in October 2008.

Immediately after birth, Lauren handed the baby to Sharon and Paul, and they've been raising him ever since. The couple listed Paul as the father on the birth certificate, since he provided the sperm, while Lauren (his grandmother) had to be listed as the mother, since she gave birth.

Sharon and Paul went to court in April, mainly to see if Sharon could formally adopt Michael.

To the family's surprise, Justice Watts ruled on August 3 that not only was Sharon not the mother, but Paul wasn't the father.

Under Section 60 (H) of the Family Law Act, couples who undergo artificial conception, using donated sperm or eggs are the legal parents of the children they conceive, regardless of whether they use their own sperm and eggs.

A wife who undergoes assisted conception is the mother, even if it isn't her egg, and her husband is the father, even if it isn't his sperm.

Therefore, when Lauren gave birth to her grandson, she automatically became the legal mother of Michael, whereas Sharon was merely the egg donor.

The surprise was that Lauren's de facto partner, Clive, legally became the father.

Associate Professor Anita Stuhmcke of the Faculty of Law at the University of Technology, Sydney, said a national review of surrogacy law, prompted by Senator Conroy's case, had apparently stalled, in part because the issues were so tricky, but also because surrogacy law never gained enough attention to become a national priority.

"A national approach is needed but it never seems to get off the ground," she said.

[Link: Original Article]

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