Australian Gay and Lesbian Law Blog –“Surrogacy: Family Court Guide” by Stephen Page

Stephen Page, who is one of the best GLBTI legal bloggers around continues his excellent series of posts relating to  Surrogacy in Australia (and for Aussies heading overseas for Surrogacy).  This posting by Stephen relates to the Family Court cases relating to Surrogacy in Australia, and is a great read (albeit full of legal aspects).  Stephen’s blog can be found here (http://lgbtlawblog.blogspot.com)

In 2008 there were amendments to the Family Law Act to recognise children born in Australia as children of the parties under the Family Law Act, but only if there were State or Territory laws allowing a parenting order, and that order had been made. It should be noted at this point that different rules may apply in Western Australia to the rest of Australia. As seen below, there have been some nightmare cases involving surrogacy.
As Justice Crisford stated in the Family Court of Western Australia:

In recent years the use of artificial insemination procedures has risen dramatically, both here and overseas. They were once procedures of last resort for infertile heterosexual married couples. They have now become a mainstream solution for various reproductive challenges including absence of a heterosexual partner. New groups such as single women seeking to raise a child alone, same sex couples and gay men who have arranged for a mother to carry their child have used these procedures.

Whilst technology has grown and the ambit of artificial insemination procedures has expanded the legal system lags behind. This can lead to complicated child custody disputes between the parties.

Some of the cases refer to leave to adopt. Getting leave to adopt is a first step in the adoption process. Leave can only be obtained form the Family Court.

The cases I have written about are from the Family Court. I was unable to find any Federal Magistrate Court cases.

Australian Gay and Lesbian Law Blog “Federal Government hasn't warned about surrogacy risks” by Stephen Page

The Federal Government in its how to websites has not warned Australians that they might risk prosecution in Australia  for engaging in overseas surrogacy arrangements.

The risk of prosecution was highlighted again a week ago when Queensland passed new surrogacy laws, which criminalise those ordinarily resident in Queensland from accessing overseas commerical surrogacy clinics.

Similarly, if residents of the ACT access overseas commerical surrogacy clinics, they also commit an offence and are at risk of being prosecuted.

No doubt because these are the countries that Australians go to the most for commerical surrogacy, the Federal Government has set up websites at theAustralian Embassy in Washington and the Australian High Commission in New Delhi containing  how to guides for those contemplating overseas commercial surrogacy.

On neither of the sites is there any mention that it is an offence for a resident of Queensland or the ACT to engage in a commerical surrogacy agreement overseas, nor whether the Department of Immigration and Citizenship will refer people to Queensland or ACT authorities for prosecution. The Department in its Australian Citizenship Instructions likewise makes no mention that ACT or Queensland residents accessing commercial surrogacy clinics overseas commit offences in the ACT or Queensland respectively, nor whether these residents will be referred by Departmental officials to ACT or Queensland authorities for investigation and/or prosecution. 

Press Release - “Babies Born to HIV-Positive Growing Generations Surrogacy Clients to Double in 2010” by Growing Generations

This is excellent news for HIV positive Gay and Lesbian Australians wanting to have children.  I am sure Growing Generations is not the only agency offering this service, but it is certainly the only one I am aware of.

Babies Born to HIV-Positive Growing Generations Surrogacy Clients to Double in 2010
Obama Administration's Lifting of Restrictions on Visas for HIV-Positive Foreigners Opens Program to International Clients

LOS ANGELES, Feb. 16 /PRNewswire/ -- The nation's largest surrogacy agency announced today that the number of babies born to HIV-positive clients is expected to more than double in 2010 as its program for HIV-positive men using their own sperm to create embryos continues to expand in the U.S. and abroad.  In 2009, Growing Generations had 5 babies born to HIV-positive parents working with surrogates and in 2010 more than 10 babies are expected.

"It is so amazing for us to see these babies being born to loving, healthy parents who have dreamed of this opportunity for years," said Growing Generations CEO Stuart Miller.  "As the first agency to create a program specifically for clients with HIV, our expertise and guidance of this process is unparalleled."

Participants in Growing Generations' HIV program go through the same process as other clients with the addition of an extensive health screening and preparation process for the sperm which virtually eliminates any risk of exposure to the surrogate or embryo.  Many men with HIV show no material trace of the virus in their semen.  The sperm preparation process has been used for more than a decade in non-surrogacy related pregnancies and, as is the case with all of Growing Generations surrogates and babies, no one has become infected with HIV.

The program is now available not only to citizens of the U.S. but to international clients as well due to the Obama administration's lifting of the restriction on visas for HIV-positive foreigners.  In January of this year, the Department of Health and Human Services and the Centers for Disease Control and Prevention removed HIV infection from the list of diseases that prevent non-U.S. citizens from entering the country.

"We are extremely pleased that the Obama administration has removed a restriction that should have been removed a long time ago," added Miller.  "Our company has always been at the forefront of fighting against discrimination and our ability to now serve clients with HIV from around the world is something we are very proud of.  We anticipate that as people with HIV learn of this opportunity, we will continue to see more of them choose surrogacy as their family building option." 

To learn more about Growing Generations, please visit www.growinggenerations.com.
About Growing Generations, LLC

Since 1996, Growing Generations has been a company passionately dedicated to the vision of creating life and, in the process, changing the world. Founded by gay and lesbian parents, our mission is simple — to build families of choice for communities around the globe through surrogacy, egg donation, and sperm donation.
SOURCE Growing Generations
RELATED LINKS
http://www.growinggenerations.com

Brisbane Times – “Surrogacy reforms should not exclude gay couples: group” by AAP

A push to decriminalise altruistic surrogacy in Queensland should not exclude same-sex couples, the Queensland Association for Healthy Communities says.

Queensland MPs will get a conscience vote on Wednesday about whether to follow other states and decriminalise altruistic surrogacy, where a woman has another couple's child for no payment.

Under the proposed reforms, legal parentage of a child born under such an agreement would be transferred from the birth mother to the parent, or parents, who commissioned the birth.

The association, which promotes the health and wellbeing of lesbian, gay, bisexual and transgender Queenslanders, called on MPs to support making non-commercial surrogacy legal for all.

MPs should also agree to legally recognise both parents in same-sex headed families, it says.

"The only test of parenthood should be whether a loving, nurturing and safe environment can be provided for the child, not the gender of the parents," the association's general manager Paul Martin said in a statement on Wednesday.

"Numerous studies from Australia and around the world show that children raised by same-sex couples develop equally as well as those raised by opposite sex couples.

"We call on all members of parliament to be respectful in the debate today."

The opposition is adamant that same-sex couples and single parents must be excluded from any reforms to surrogacy arrangements.

Some church and family groups agree, saying the reforms, as they're currently proposed, will threaten the traditional family model and normalise same-sex parenting.

Queensland is the only Australian state in which altruistic surrogacy is a criminal offence, punishable by a $10,000 fine or three years' imprisonment.

Commercial surrogacy will remain illegal under the bill.

[Source: Original Article]

Courier Mail - “Surrogacy Bill 'could lead to same-sex parenting'” by Rosemary Odgers and Margaret Wenham

CONTROVERSIAL laws giving same-sex couples and sole parents the right to have a child through surrogacy are set to divide State Parliament in a landmark debate today.

Queensland's 89 MPs will get a rare conscience vote on whether to legalise altruistic surrogacy in Queensland and allow the legal parentage of a child to be transferred from the birth mother to its intending parents. But church and family groups were last night urging the State's 89 MPs to scuttle the Bill, angry it will allow gay couples and single parents to access surrogacy.

Family Council of Queensland president Alan Baker called the Bill "a trojan horse for the normalisation of same-sex parenting", saying it established in law "the absurd proposition that two men or two women are the same as a mother and father."

He accused the Government of "trampling on the rights of children".

The Opposition is also angry the Government has tied the issue of surrogacy to gay parenting and has introduced its own Bill that, if passed, would restrict altruistic surrogacy to heterosexual married and de facto couples.

"The Government banned same-sex and singles from adopting . . . why is it different for surrogacy?" Liberal National Party deputy leader Lawrence Springborg said.

But gay and lesbian rights organisations have waged their own campaign, urging Parliament to pass the laws.

Queensland Association for Healthy Communities general manager Paul Martin said: "Lesbian and gay people are already having children ... what this legislation brings is certainty and clarity for same-sex parents and their children."

The LNP's 34 MPs are expected to toe the party line and vote against the Government while getting a conscience vote on their own Bill.

Only two Labor MPs – Margaret Keech and Michael Choi – have expressed concerns about the Government's position, making it unlikely the laws will be blocked.

[Source: Original Article]

News.com.au - “Australian Christian Lobby want gays banned from surrogacy” by AAP

A Christian lobby group says surrogacy should be a last resort for infertile married couples, not a solution for gay and lesbian couples who want children.

The Australian Christian Lobby has called on Queensland MPs to amend or reject a new bill to decriminalise altruistic surrogacy, where a woman carries another couple's child for no payment.

Heated debate is expected in parliament as MPs debate the issue this week, with the opposition hoping to restrict access for same-sex couples.

The ACL says children are not pets and should not simply be given to anyone who wants one.

ACL managing director Jim Wallace says the surrogacy bill should have been directed at permitting surrogacy as a last resort for infertile married couples.

Instead it represents a piece of radical social engineering which will alter the natural make-up of the family by permitting single adults and same-sex couples to have children via surrogacy, he said.

Australian Gay and Lesbian Law Blog - “Surrogacy Guide: State by State” by Stephen Page

Stephen Page, my absolute favourite Gay/Lesbian Legal Blogger has been busy and put together the following summary of Surrogacy laws in each state and territory.  Stephen is a prolific blogger and tweeter….and Gays and Lesbians in Australia are better for his sterling efforts.  Once again, check out his summary below or here.

Each Australian state and territory has its own rules as to surrogacy. Currently all the states, territories, Commonwealth and New Zealand governments are considering reviewing arrangements as to surrogacy, so that all laws are consistent with 15 principles. Those principles are currently secret.

All the states and territories are opposed to commercial surrogacy arrangements. There are no commercial surrogacy clinics in Australia.Australians travel overseas for commerical surrogacy arrangements. Commercial arrangements overseas can lead to complications. The states have moved or are moving to allow altruistic surrogacy.

When a court order for transfer of parentage is made, as it can be in Victoria, the ACT and WA, that order is recognised under the Family Law Act, theChild Support (Assessment) Act and the Australian Citizenship Act. A foreign order may not be recognised under those Acts.

Queensland
Legislation: Surrogate Parenthood Act 1988
Is commercial surrogacy allowed?
No. It is a criminal offence for any commercial surrogacy arrangment to be entered into in Queensland. It is also a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrnangment anywhere in the world.
Is altruistic surrogacy allowed?
No. The same rules that apply to commercial surrogacy apply to altruistic surrogacy.
Are there any proposed changes?
Yes. Following the Parliamentary Committee's inquiry into altruistic surrogacy, the Bligh government announced that altruistic surrogacy would be decriminalised. There are now two bills: the Government's  and the Opposition's. They are identical, except in two respects. Both propose to allow altruistic surrogacy in Queensland for Queenslanders.  The key features are:

• traditional surrogacy and gestational surrogacy would be allowed
• altruistic surrogacy would be allowed
• surrogacy agreements would not be enforceable
• there would be a transfer of legal parentage
• resident parents must reside in Queensland
• commercial surrogacy would remain a criminal offence- both in Queensland and by those ordinarily resident in Queensland throughout the world.

Where they don't agree:

• the Government's bill proposes to cover single people and same sex relationships, as well as married and heterosexual de facto couples; and
• would also recognise lesbian co-mothers as parents on birth certificates; but
• the Opposition's bill excludes single people, those in same sex relationships, and those in heterosexual de facto relationships that are less than 2 years; and
• excludes lesbian co-mothers from being recognised.

The Government has allowed a conscience vote. We shall see how it develops.

New South Wales
Legislation: Assisted Reproductive Technology Act 2007
Is commercial surrogacy allowed?
No. It is an offence. It is not an offence for a NSW resident to arrange a commercial surrogacy outside NSW.
Is altruistic surrogacy allowed?
Yes, but other than the regulation of IVF clinics it is not regulated.
Can legal parentage be transferred?
No - other than through adoption. Generally the ability to transfer parentage is seen as a preferable approach. If unable to transfer, then the usual complications arise as to prior parentage, such as child support.
Are surrogacy agreements binding?
No. They are void.
Who is covered?
Everyone. As altruistic surrogacy arrangements are not specifically regulated, therefore everyone has coverage: married and de facto couples, same sex couples and singles.
Do the intended parents have to live in NSW?
No.

Australian Capital Territory
Legislation: Parentage Act 2004
Is commercial surrogacy allowed?
No. It is an offence. Like Queensland, it is also an offence for an ACT resident to go anywhere in the world to obtain a commercial surrogacy.
Is altruistic surrogacy allowed?
Yes.
Can legal parentage be transferred?
Yes, but only to intended parents from the ACT.
Are surrogacy agreements binding?
No, but an agreement is required for a transfer of parentage.
Who  is covered?
Anyone, but: to have a transfer of parentage, it applies to couples only, not singles. Married, de facto and same sex couples are included.
Do the intended parents have to live in the ACT?
No, but there cannot be a transfer of parentage unless they do.

Victoria
Legislation: Assisted Reproductive Treatment Act 2008
Status of Children Act 1974
Is commercial surrogacy allowed?
No. It is an offence. There is no international ban as there is in Queensland and the ACT.
Is altruistic surrogacy allowed?
Yes.
Can legal parentage be transferred?
Yes.
Are surrogacy agreements binding?
Unlikely.
Who is covered?
Everyone: married couples, de facto and same sex couples and singles

Tasmania
Legislation: Surrogacy Contracts Act 1993
Is commercial surrogacy allowed?
No. It is an offence. It is not an offence for Tasmanians to go overseas to commercial surrogacy clinics.
Is altruistic surrogacy allowed?
No. It is an offence.

South Australia
Legislation: Family Relationships Act 1975
Is commercial surrogacy allowed?
No. It is an offence. There is no restriction on South Australians attending overseas commercial surrogacy clinics.
Is altruistic surrogacy allowed?
No. It is declared illegal and void.
Are there any changes on the horizon?
Yes. The Statutes Amendment (Surrogacy) Act 2009 commences on 26 November, 2009. Its effect:

• commercial surrogacy remains illegal
• altruistic surrogacy is permitted, but there needs to be compliance with a recognised surrogacy agreement
• it is unlikely that agreements are binding
• coverage is limited to South Australian residents, who are married or in a heterosexual de facto relationship for 3 years
• the intended mother must be infertile or there is a risk of a genetic disease being passed on otherwise
• there appears to be some suggestion (although it is unclear) that the surrogate must be the mother, sister, step-sister or first cousin of one of the intended parents
• there can be transfer of legal parentage

Western Australia
Legislation: Surrogacy Act 2008
Is commercial surrogacy allowed?
No. It is not an offence to enter into a commercial surrogacy arrangement, but the clinic would be committing an offence. It is not an offence for a Western Australian to go to an overseas commercial surrogacy clinic.
Is altruistic surrogacy allowed?
Yes.
Can legal parentage be transferred?
Yes, but the intended parent or parents must be WA residents, and one or both must be at least 25.
Are surrogacy agreements binding?
Unlikely.
Who is covered?
Everyone, but: married, heterosexual and same sex de facto couples and singles can be intended parents, provided all are WA residents and one or both are 25 or older.

Northern Territory
Legislation: Nil
There appears to be no legislation in the NT covering surrogacy. It would not be an offence for a Territorian to attend an overseas commercial surrogacy clinic. The ability to adopt in the NT is restricted to married couples or Aboriginal traditional marriage couples, or single people in exceptional circumstances.
ART and IVF services in the Territory are only offered by South Australian doctors, who have to comply with South Australian guidelines. Therefore they do not offer surrogacy services. it is not know what might happen after 26 November, 2009.

[Source: Original Article]

Australian Gay and Lesbian Law Blog - “Australian adoption guidelines” by Stephen Page

Stephen Page from Harrington Family Lawyers, Brisbane, who is one of my favourite bloggers on all thing Gay/Lesbian Law in Australia, has put together a rather excellent summary of Adoption guidelines in Australia. 

 

It highlights the not-so-good nature of them for Gays and Lesbians in most states but provides a great overview.  Thanks Stephen.

 

Every State and Territory has a different set of rules as to who can adopt. This guide does not cover overseas adoptions or adoptions by expatriate Australians.

New South Wales
Legislation: Adoptions Act 2000
The people who can adopt are:

• a couple who have been married for two years;
• a heterosexual de facto couple, who have been together for two years;
• singles- if either they are at least 21, plus at least 18 years older than the child or in the special circumstances of the case the Supreme Court gives permission.

The Supreme Court cannot grant permission to one person to adopt if they have a spouse- husband or wive or heterosexual de facto relationship, and the spouse gives permission.
An adoption by a relative can occur, but only if the Supreme Court is satisfied that it is preferable to any other action, which may be a considerable hurdle.
An adoption by a step-parent can occur, but only if leave to adopt has occurred under the Family Law Act and the child is at least 5, and the consent of the parent is given or dispensed with, and only if the Supreme Court is satisfied that it is preferable to any other action.
Same sex couples cannot adopt. Recommendations by a NSW Parliamentary Committee to allow same-sex adoptions were rejected by the State Government.

Australian Capital Territory
Legislation: Adoptions Act 1993
People who can adopt:

• a couple, including a married couple, living together for 3 years.

There is a strong preference in the Adoptions Act 1993 to make guardianship and custody orders in matters involving stepparents and relatives rather than adoption orders.
Same sex couples can adopt.

Victoria
Legislation: Adoptions Act 1984
People who can adopt:

• a married or heterosexual couple who have been together for 2 years;
• a couple in an Aboriginal traditional marriage who have been together for 2 years.
• single people in special circumstances.

Same sex couples cannot adopt. The Victorian Law Reform Commission has recommended that this be changed, but it has not.

Tasmania
Legislation: Adoptions Act 1988
People who can adopt:

• married couples, and people in de facto relationships, who have been together 3 years.
• single people in special circumstances.

Qualifier: De facto couples, including same sex couples can adopt, but only if they have a registered relationship. Only married couples can adopt a child that is not a stepchild or relative (subject to the special circumstances for single people).

South Australia
Legislation: Adoption Act 1988
People who can adopt:

• couples who have been married for 5 years;
• couples in heterosexual de facto relationships for 5 years;
• single people in special circumstances.

Same sex couples cannot adopt.
Western Australia
Legislation: Adoption Act 1994
People who can adopt:

• is a step-parent of the child and has been married to, or in a de facto relationship with, a parent of the child for at least 3 years;
• is a carer of the child; 
• has, under the Adoption Act, had the child placed in his or her care with a view to the child’s adoption by him or her.

Same sex couples are able to adopt, due to the definition of de facto relationship. The country's only documented same sex adoption occurred in WA.

Northern Territory
Legislation: Adoption of Children Act
People who can adopt:

• a couple who have been married for 2 years.
• a couple in an Aboriginal traditional marriage of  2 years.
• a husband or wife of a parent of the child;
• a relative of the child.
• single people in exceptional circumstances.

De facto (unless in an Aboriginal traditional marriage) and same sex couples cannot adopt.

Queensland
Legislation: Adoption Act 2009
People who can adopt:

• a couple who have been married for 2 years.
• a heterosexual de facto couple who have been together for 2 years.
• a step-parent when the couple havebeen married or in a heterosexual de facto relationship for 3 years and the child has lived with them over that time;
• the child is between 5 and 17 years old (or there is enough time between 17 and 18 to complete the process).

Same sex couples and single people cannot adopt. Premier Anna Bligh andthe Government made plain that same sex couples need not apply. The previous 1964 Act preserved the inherent jurisdiction of the Supreme Court which may have allowed these adoptions. It is not known whether that inherent jurisdiction remains.

[Source: Original Article]

ABC Online - “Adoption double standards rile locals” by Annie Guest

Advocates for adoption want the Government to consider anomalies in the law that seem to give a special advantage to Australians living overseas.

New figures on adoption show that Australians are continuing to adopt more children from overseas countries than at home.

For people living here and adopting overseas there is one set of rules, but if you live elsewhere for a year or more, Australia's adoption laws do not necessarily apply.

Adoption advocates are using the new statistics to renew calls for more liberal laws, including allowing same-sex and single parents to apply.

A Federal Government review is currently underway.

It is well-known that there are many more Australians who would like to adopt children than there are children available for adoption.

But if there is any doubt, the situation is made clear in the latest report by the Australian Institute of Health and Welfare (AIHW).

Institute Child and Youth Welfare unit head, Tim Beard, says the number of children available for adoption has dropped significantly.