Category Archives: Donors & Surrogates

Aussies Now Have Limited Access to Surrogacy In India

Posted on by
Reply

Commercial surrogacy is illegal is Queensland. Commercial surrogacy is when payment is made in exchange for a woman carrying a child for a person/couple. Queensland has in the last few years seen altruistic surrogacy legislated under the Surrogacy Act 2010. Altruistic surrogacy is where there is an agreement between the surrogate parents and the intended parents for the surrogate mother to carry a child for the intended parents but the only exchange of money is for medical fees. It is otherwise, an altruistic arrangement.

It is also illegal for parents to head overseas to participate in commercial surrogacy arrangements in other countries. Despite this, India has been a popular destination for want-to-be-parents with limited other options to have a child.

This has now all come to a halt. Prior to Christmas the Indian Government placed requirements on parents wishing to utilise commercial surrogacy in India. To be eligible, you must have been married for two years and can only enter into a commercial surrogacy arrangement in India if it is legal to do so in your home country.

This change effectively denies the use of such services to a large group of Australians. Up until now same sex couples and those not married living in Queensland, New South Wales and the ACT, have sought commercial surrogacy arrangements in India.

The only persons now eligible are those that are married for over two years and are living in the Northern Territory where commercial surrogacy is legal.

Family law practitioners who assist parents with surrogacy say that these couples searching for commercial surrogacy will simply look to other overseas destinations.

The Australian High Commission for India states:

Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution. They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur.

Why the change?

It seems the new direction is driven by cases like that of baby Manji. The baby’s Japanese and Indian parents divorced during the mother’s pregnancy. After its birth baby Manji was kept in a hospital in India for three months whilst her status was established. It created confusion and citizenship uncertainty. The result is the tightening of VISA requirements for those wishing to have a surrogate child in India.

The message?

If you are considering travel overseas for the purpose of entering into a surrogacy arrangement, seek legal advice first – to do otherwise could result in devastating consequences.

Sperm Donor Stung With Child Support

Posted on by
Reply

The Kansas Department of Children and Families has demanded the sum of $6 000 in child support from an American man who donated his sperm.

William Marotta answered an advertisement in 2009 to be a sperm donor for a lesbian couple wishing to have a child. Marotta provided his sperm free of charge to the couple after signing a contract that stated he would have no parental care for any child born as a result of his donation.

Eventually the lesbian parents separated and the mother with the full time care of the child applied for government funded benefits. Marotta has tried to rely upon the signed contract as the reason he shouldn’t be liable for child support, but the Government says the document wasn’t valid because a licensed physician did not perform the insemination process. Kansas law states that if a doctor handles the artificial insemination a sperm donor is not the father of the child, however, the law doesn’t cover a situation where no doctor is involved. The lawyer representing Marotta says the law is outdated and the Kansas state Government is only pursuing the case to make a point of their stance against same-sex parenting. Kansas banned same-sex marriage in 2005.

Social commentators on the case say the couple and Mr Marotta put themselves in this predicament by participating in a do-it-yourself insemination instead of following legally recognised channels.

In an interesting twist, the lesbian parents back Marotta in his fight against paying them any child support. The matter is due to go to hearing in April 2013.

Under the Qld Surrogacy Act 2010, up until such time as formal parentage is transferred from the birth parents (surrogate) to the intended parents (the recipients of the child), the birth parents are considered the child’s legal parents and therefore would be liable for child support. At the time of birth, the birth parents are named as the legal parents, not the intended parents. At the time that a transfer of parentage occurs, the intended parents will not only be named on the birth certificate, but become liable for child support should the parents separate. Therefore, the situation described in the US should not occur here – if a woman was acting as a surrogate for another woman, she and her spouse would be advised before entering into any formal surrogacy arrangement that should, for whatever reason, the child not go to the intended parents, they would be responsible not only for the child and all associated costs, but would be liable for child support. This is the case regardless of how the conception occurred.

It is important to seek appropriate legal advice if intending to enter into any sort of surrogacy arrangement or donation of sperm for IVF purposes.

Sperm Donor Father Wins Sole Parental Responsibility

Posted on by
Reply

A father who was essentially a sperm donor has won sole parental responsibility in relation to his child’s education. Additionally, the child is to live with him and spend regular time with her mother, namely three weekends of the month and one weeknight each fortnight.

While the father was considered a sperm donor by both parents as the two were never in a relationship, he has been involved in the child’s life since birth, escalating to overnight stays from when the child was 6 months old, to 2 nights each week and sometimes 3 nights. A child support arrangement was entered into that is to last until the child reaches 16 years of age.

The mother has since had 2 other children to 2 different men and the father has been the sperm donor on one other occasion that resulted in another child, which the mother was unaware of.

As a result of her second pregnancy, the mother wanted to relocate which would have caused difficulty in the father spending time the child. This relocation was conducted despite an order restraining the mother from doing so.

Once the mother found out that the father had another child, she began denigrating the father to other people, including his solicitor and the greater public by altering the father’s Wikipedia page.

The mother attempted to remove the child from her school by contacting the principal and staff in an abusive manner. The mother attempted to enrol the child in another school despite consent orders that required both parents to consent to the child’s educational institution.

A Family Report was conducted that recommended that the father have sole parental responsibility for certain aspects of the child’s life (now aged 7), particularly educational needs. The father was concerned that the mother hit the child and made negative comments about the father in front of the child.

The Family Report writer made observations that the child may be subject to “parentification” as a result of the mother’s manic behaviour and the child placing expectations on herself to support the mother. Parentification is the process of role reversal where the child becomes the parent, needing to look after their own parent. This can have adverse consequences on a child’s emotional development and can affect adult relationships later in life.

The child also admitted to being more comfortable in her father’s residence. This, along with the mother’s obvious and unrelenting hostility towards the father and his family, led the court to order that the father have sole parental responsibility for the child’s educational needs, and that the child live with the father. The court also considered the mother’s previous actions of removing the child from school, acting abusively to the staff, and her inability to discuss education issues with the father would result in matters being unresolved and possibly ending up in court again.

Conception defined by judge

Posted on by
Reply

In a world first, a Queensland judge has defined the point of conception in the context of a surrogacy arrangement. Judge Clare SC determined that a child is ‘conceived’ when a woman becomes pregnant, not when an egg is fertilised. This only affects surrogacy arrangements that utilise IVF because a distinction can be made between the two. In natural conception, there can be no distinction between fertilisation and implantation leading to pregnancy.

For a surrogacy arrangement to be valid, it must be signed before the child is conceived, hence the importance of conception.  Valid agreements being in place is to protect surrogate mothers from signing agreements under duress, and allows them to consider the decision prior to falling pregnant. The issue in the case was that the eggs had been fertilised in 2008 and frozen, a surrogacy arrangement entered into in April 2011 with the surrogate mother implanted with a fertilised egg in July 2011. This created problems because if conception occurred when the egg was fertilised and an embryo created in 2008, then the surrogacy arrangement was entered into after conception which is contrary to the Act. If a surrogacy agreement is not made before the child is conceived, a court cannot make a parentage order that transfers parentage from the surrogate parent to the intended parents.

The court found that conception did not occur until the surrogate mother was pregnant as conception is commonly considered to be the act of falling pregnant rather than the act of fertilisation. This is supported by the fact that many fertilisations do not result in pregnancies which is why in IVF treatments, multiple eggs are implanted with the hope of at least one attaching to the uterus and developing into a foetus. Her Honour supported this interpretation by making reference to discussions of IVF and the notion that a child is conceived once implanted in the uterus. Her Honour also said that conception is more than what can be achieved in a test tube and is the commencement of pregnancy in a woman’s body, making reference to dictionary definitions as well as the affidavits of gynaecologists and obstetricians.

This case has attracted a lot of attention already.  It is worth noting, however, the relevance of this definition is to surrogacy matters under The Surrogacy Act 2010.

Surrogacy laws to change despite election promise

Posted on by
Reply

 

The new government plans to change surrogacy laws, despite an election promise to the contrary.

The Queensland Attorney General, the Honourable Jarrod Bleijie said last week in Parliament:

“I can also advise the House tonight that the government will be changing the surrogacy laws in the future. We will be introducing amendments similar to those introduced by the honourable member for Southern Downs when he was the shadow minister. We will be repealing the provisions in the Surrogacy Act that deal with same-sex couples, de factos of less than two years and singles. That was a clear commitment given many years ago when that original debate took place. The government will proceed to amend the Surrogacy Act.

What we are also going to deal with is the other issue that that bill dealt with and that is parentage presumptions and parentage orders. Honourable members will recall at the time that the member for Southern Downs supported two lesbian women, who had a natural birth, both having parentage orders. I make it absolutely clear that going forward the government will be amending the provisions around altruistic surrogacy and the Surrogacy Act to repeal the provisions with respect to same-sex couples, de factos of less than two years and singles. That is the policy position we took years ago when we debated the Surrogacy Act.”

The Attorney General refers in his speech to the previous debate surrounding Surrogacy and the views held by Lawrence Sringborg back in 2009.

The current legislation states that regardless of a person’s relationship status, they can enter into a surrogacy arrangement.   An intended parent may be a person in a same sex relationship or as part of a de facto couple or a single person.

The amendments discussed above will completely exclude same sex couples and/or those in de facto relationships for less than two years and single people from entering into a surrogacy arrangement.

Premier Campbell Newman provided assurances just days before the March election that there would not be any change to the Surrogacy laws introduced by the previous Labor government. In his defence, Mr Bleijie said Mr Newman was not completely across the issue at the time of making that promise.

What do Queenslanders think?

Image: FreeDigitalPhotos.net

Dutch sperm donor fathers 82 children. But what about child support?

Posted on by
Reply

Ed Houben, a 42 year old Dutchman, is the father of 82 children, however doesn’t pay a cent in child support.

If there is no husband in the picture, sperm donors are considered the parent under the Family Law Act and have a duty to maintain the child.

Mr Houben initially donated to sperm banks to father children, but then started helping women conceive naturally by engaging in a sexual relationship with them. Due to his high sperm count, Mr Houben is sought after all over the Netherlands and often travels abroad to meet potential mothers, but will only assist in the conception if he feels “well with them if I were their child”. Additionally, the hopeful mothers have to pay for his travel expenses.

Mr Houben avoids paying child support by having all the women he sleeps with sign a contract that waives their legal right to it. Whether this would hold up if challenged by one of the mothers is questionable.

This story engages a complex legal area of the rights and obligations of sperm donors. In Australia, the parents of a child have a duty to maintain the child, and in situations where the parents are not together, this generally involves child support. Under the Child Support (Assessment) Act, a person is  the parent of a child if they satisfy one of many situations listed under the Act, one being the presence of their name on the birth certificate. If Mr Houben is listed on any of the children’s birth certificates, in Australia, there would be a prima facie obligation on him to pay child support.

Under the Family Law Act, a child born as a result of artificial conception is given specific consideration as to who their parent is under the law. However, Mr Houben is not simply providing genetic material for an artificial process; he is helping conceive the child naturally which would implicate him as the legal father if he were in Australia. Even if he were not listed on the birth certificate, there is a consideration under the Child Support (Assessment) Act that considers people who have cohabited with the mother for a certain period surrounding the child’s birth as a parent of the child.

If Mr Houben were simply providing genetic material as he was initially, under Australian law he may still be the legal father of the child depending on other circumstances. For example, if a woman and a man are married and cannot conceive naturally, and they turn to artificial means, the child is considered the child of the mother and the other intended parent, her husband, and anyone who provided genetic material is not the parent. However if there is no husband in the picture, the sperm donor is considered the parent under the Family Law Act and so has a duty to maintain the child. Obviously there are some issues as sperm donors are often anonymous.

There are also problems if the situation is reversed, and a sperm donor wishes to have a relationship with their child as in some circumstances they may not be considered the legal parent of the child. In August last year, a lesbian couple were successful in having the biological father’s name taken off the child’s birth certificate in place of the mother’s ex-partner despite the fact that the child and father had an emotional attachment and meaningful relationship.