Friday, August 15, 2014

[Australia] Family Law Council's "Report on Parentage and the Family Law Act" finally released. Surrogacy Recommendations.

On 14 August 2014, the Federal Attorney Generals department released the "Family Law Council" "Report on Parentage and the Family Law Act".  The report was in response to the former Attorney-General, Nicola Roxon request t consider a range of issues in relation to who is considered to be a parent of a child under the Fmaily Law Act 1975 (Cth).  The report was finalised in December 2013, but was only released today.

The report covers a range of areas relating to the Family Law Act, but Chapter 3 of the report is the one that is of particular interest to Gay men who have had children via surrogacy overseas. in particular, those who have used commercial surrogacy overseas to create their families.

Men who have children via surrogacy overseas return to Australia with their children only to find that they are not the legal parents of their children. Effectively, the children have no legal parents in Australia.  This applies to gay couples as well as straight couples.  This is different to those who have children via altruistic surrogacy in Australia under the various state and territory legislation.

This anomaly  was considered in Chapter 3 of the report.  And whilst it remains to be seen whether the Government will actually implement the recommendations, it is important that we note how significant they are for gay dads via surrogacy.

There are 5 recommendations in Chapter 3 dealing with Surrogacy, however it is the first 2 that are the most interesting.

Recommendation 12 states: 

The new federal Status of Children Act (see Recommendation 7) should contain provisions specifically dealing with applications for transfer of parentage in surrogacy cases where state and territory Acts do not apply. This should be based on a transfer of parentage process and not a presumption of parentage.

What this means is that they are recommending that these dads can now become legal parents of their children via a transfer of parentage process in the Courts.  This is a significant recommendation and will for instance all my husband and I to become the legal parents of our 7 year old.

The second significant recommendation (No. 13) ties in with No. 12. It states: 

The provisions in the new federal Status of Children Act dealing with the transfer of parentage in surrogacy cases where state and territory Acts do not apply should contain a set of minimum requirements based on the proposals considered by Ryan J in Ellison and Anor & Karnchanit [2012] FamCA 602 with the aim to ensure compliance with Australia’s international human rights obligations, including the following:

•That any order is subject to the best interests of the child;
•Provision is made for when the parties change their minds;
•Evidence of the surrogate mother’s full and prior informed consent;
•Evidence of the surrogacy agreement, including any sums paid;
•Consideration should be given to whether the intending parents have acted in good faith in relation to the surrogate mother;
•Evidence of the intending parent/s actions in relation to ensuring the child will have access to information concerning the child’s genetic, gestational and cultural origins;
•Provision is made that where a surrogacy arrangement involves multiple births, orders must be made in relation to all children born;
•The legality of the surrogacy arrangement should be a relevant consideration for the court when determining parentage.

This outlines the requirements that the surro-dads will need to meet in Court in order to gain access to a transfer of parentage and thus become the legal parents of their children.

These proposed provisions have been developed out of Ryan J decision in a particular surrogacy case.  They should be seen as very important for those people planning surrogacy overseas in future. They inform the intended parents of a minimum standard of care, oversight, behaviour and ethical conduct that is expected if they are to succeed in gaining a transfer of parentage.

Whilst there are no doubt some people who will find them onerous or maybe even consider them unfair, the reality is that they are aiming to reflect best practice in surrogacy cases such that the rights of all parties (the surrogate, intended parent and children) are all adequately considered and protected.

It is only a report with recommendations at this stage, but for surrogate dads and their kids, this is a huge step forward in the long road to actually becoming legal parents of our children.

Read the Full Report Here.

Rodney Chiang-Cruise
Co-Moderator Gay Dads Australia

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