In December 2015 the Federal Attorney General, asked the House of Representatives Standing Committee to inquire into and report on the regulatory and legislative aspects of international and domestic surrogacy arrangements, with a report due to be released on the 30 June 2016. Surrogacy is an intricate and sensitive subject, which raises a number of ethical and legal concerns. What is the focus of the inquiry? What will this mean for family lawyers?
Altruistic Surrogacy is legal in NSW, however, there are no uniform laws regulating altruistic surrogacy across all states and territories.
This issue arose recently when a lawyer called me to ask if I knew of any counsellors, not attached to a fertility clinic, as the clients (surrogate/partner and intended parents) weren’t engaging with a fertility clinic and couldn’t find a qualified counsellor to provide counselling and a report, as it is a requirement that clients must undergo independent counselling prior to engaging in altruistic surrogacy (s 35 Surrogacy Act).
Counsellors must meet the definition of a “qualified counsellor“which means a person who has the experience or qualifications (or both) of a kind required by the regulations to exercise the functions of a counsellor under the Surrogacy Act. This is usually not an issue, as many people undergo IVF to conceive, through regulated fertility clinics, where counsellors are trained to provide appropriate advice.
However, the issue arises when couples use an informal method of artificial insemination, without engaging in IVF through a formal fertility clinic. This is not always an easy task to find a suitable counsellor. Please contact me if you require the names of suitable counsellors outside of fertility clinics, who meet the requirements, and can be engaged by clients not utilising fertility clinic services.
It is illegal in Australia, however, research shows Australians are the world’s biggest users of overseas surrogacy. The trend to engage in international surrogacy has increased irrespective of the criminal bans on residents of the ACT, NSW and QLD.
Parliamentary Inquiry Focus
- the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
- medical and welfare aspects for all parties involved, including regulatory requirements for intending parents and the role of health care providers, welfare services and other service providers
- issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children
- relevant Commonwealth laws, policies and practices (including family law, immigration, citizenship, passports, child support and privacy) and improvements that could be made to enable the Commonwealth to respond appropriately to this issue (including consistency between laws where appropriate and desirable) to better protect children and others affected by such arrangements
- Australia’s international obligations
- the adequacy of the information currently available to interested parties to surrogacy arrangements (including the child) on risks, rights and protections
- information sharing between the Commonwealth and states and territories, and
- the laws, policies and practices of other countries that impact upon international surrogacy, particularly those relating to immigration and citizenship.
IVF and Surrogacy are not insignificant in the family law arena, even though they may not be the types of cases you have to put your mind to every day. However, these cases are increasing in regularity before the Courts.
All family lawyers will be required to have, at least a basic understanding, of IVF and Surrogacy laws, which other lawyers will need to provide advice in such cases and to keep up to date with the new proposed changes to ensure clients are effectively represented, as the surge in these cases continue.
If you are in need of a barrister/mediator who practices in family law (medical negligence and personal injury) and has expertise in IVF and Surrogacy law as well as having been employed in medicine for 15 years, with 8 years in obstetrics and gynaecology, please contact Louise on firstname.lastname@example.org or (02) 9336 5399