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Surrogacy and Birth Technologies
Contemporary issues concerning family law
Surrogacy
An arrangement where a woman carries a child on behalf
of a couple unable to have children, either by artificial
insemination from the man or implantation of an embryo
from the woman
Historically…
 Until recently, the law in NSW assumed the birth
mother (and her partner if one existed) was the legal
parent, so the surname on the birth certificate was
hers.
 This meant that the parents actually raising the child
faced problems enrolling them in school, making
decisions about their health care, and gaining
access to services like Medicare.
 The child was potentially denied legal rights, such as
access to inheritance.
Legislation
 Surrogacy Act 2010 (NSW) came into effect on 1
March 2011
 It allows the intended parents of a child born through
surrogacy to apply to the NSW Supreme Court for a
parentage order thirty days after the birth.
 If it is granted, they gain full parenting rights, and
their name on the child’s birth certificate.
 To be eligible:
 the surrogacy must be altruistic;
 the birth mother must be at least 25;
 all parties must have received legal advice and
counselling, and
 must have given informed consent to the agreement prior
to conception and
 the child must be living with the intended parents at the
time of application.
 the surrogate mother is legally entitled to have her
expenses covered by the intended parents, including
medical, legal and counselling bills.
Case: Application of MM and KF re
FM [2012]
TWO men have become the first same-sex couple in NSW to be
declared the parents of a baby that was born through a surrogate,
with a court ruling it was in the child's "best interests".
In transferring the guardianship of the child to the two men, a Supreme
Court judge was satisfied the pregnancy wasn't the result of an illegal
commercial agreement and that the woman who carried the baby
wasn't paid to do so.
The child, born in April, 2010, now has the two Sydney men as parents,
with the birth mother agreeing to no longer be recognised on the birth
certificate.
The court heard the three had only an "oral arrangement" for the
surrogacy but an affidavit from the birth mother was tendered,
indicating she "consents" to the two men being declared the parents.
The Surrogacy Act imposes penalties of up to two years jail or a
$110,000 fine for people found to have entered into a commercial
surrogacy arrangement where a woman is paid to carry a child for a
couple who cannot sustain their own pregnancy.
Altruistic surrogacy, when a woman isn't paid for the pregnancy except
for medical expenses, is rare but permitted in NSW - with the new
legislation intended to make it easier for parentage to be transferred.http://www.dailytelegraph.com.au/news/nsw/two-dads-and-a-surrogate-create-legal-landmark/story-
e6freuzi-1226377828528
Media: When altruistic surrogacy goes wrong
Altruistic surrogacy is the only kind permitted in Australia but it doesn't always
end with everyone happy.
In the case of Diane*, 40, she offered to help out a couple with whom she had
been friends for 20 years and agreed to carry their child. But the arrangement
ended with legal action, a screaming door-stop confrontation between the
mother and the surrogate, a tussle in the delivery room and ugly postings on
Facebook.
Surrogacy rates in Australia are low. In 2011, only 80 women offered their
bodies for altruistic surrogacy, according to Michael Chapman of the University
of NSW and a fertility specialist with IVF Australia. It usually involves an
agreement between family members or less frequently between friends. It is
illegal to pay a surrogate in Australia but the surrogate can claim medical bills
and any other out-of-pocket expenses.
…
Commercial surrogacy is illegal in Australia, apart from the Northern Territory,
which has no laws governing surrogacy. NSW, Queensland and the ACT have
made it an offence for residents to enter into commercial surrogacy abroad and
can impose penalties of jail for up to two years.
Diane believes the system of altruistic surrogacy offers little protection for the
surrogate.
"That's why people are going abroad," she said. "I carried the baby, I birthed it
and I handed her over. I did three rounds of IVF. I always believed that
Australian surrogates shouldn't be paid. Now I think it needs to be done like a
business transaction. You pay the surrogate so there's no backlash afterwards."
http://www.smh.com.au/national/when-altruistic-surrogacy-goes-wrong-20140807-101bo5.html#ixzz3kxnd4Fqi
There are now an estimated 1500 surrogacy
centres across India. In the space of a decade or
so the surrogacy industry has grown to what one
industry observer has estimated to be a billion
dollar industry. But it’s exploded in a place where
regulation has been lagging well behind the boom.
So there are pitfalls for aspiring parents and perils
for surrogates as well.
Many surrogates are from very poor backgrounds,
have little or no education and certainly limited or
non-existent financial literacy. There are concerns
that some are pressed into the industry by their
husbands and families as a quick way to make an
otherwise unimaginable $7000AU per birth.
Supporters of the industry say the money is
vaulting them out of poverty and into their own
homes, an education and the prospect of a much
brighter future.
Baby Gammy
 Baby Gammy was born with
Downs Syndrome (& other
health issues) to a 21yo
surrogate mother – his
Australian parents took his
twin sister back to WA, but
left him in Thailand
 It was later revealed that the
Australian father (David
Farnell) had a number of
child-sex convictions dating
from the 1980s & 90s
 Thailand has since banned
foreigners from commercial
surrogacy, and raised
domestic surrogacy age to
25
 Baby Gammy has received
Australian Citizenship.
In-Vitro Fertalisation
A reproductive technology in which an egg is removed
from a woman, joined with a sperm cell from a man in a
test tube (in vitro).
 Since 1980 when the first child of IVF was born, the
number of children born as a result of this
technology has grown exponentially to 85 000 in
2010.
 The law says that if a child is born to a woman as a
result of the carrying out of an artificial conception
procedure while the woman was in a marriage or de
facto relationship with another person, and the
woman, her spouse and the donor of the genetic
material consented to the procedure, then the child:
 Is the child of the woman and her spouse; and
 Is not the child of the donor of the genetic material.
Legislation
 Assisted Reproductive Technology Act 2007 (NSW)
requires ART providers to be registered with the
NSW Ministry of Health and sets core standards for
the provision of ART treatment.
 Aims to prevent the commercialisation of human
reproduction, and to protect the interests of the
following persons:
 a person born as a result of ART treatment;
 person providing a gamete for use in ART treatment or for
research in connection with ART treatment;
 a woman undergoing ART treatment
 gametes can only be used in a manner consistent
with the gamete provider's consent, so individuals
retain control over the use of their own genetic
material;
 anonymous donation of gametes is prohibited;
 ART providers are required to place information
about donors on a Central Register which children
born as a result of ART treatment can access once
they turn 18 years of age;
 There is also a Voluntary Register for offspring born
prior to the commencement of the ART Act.
Ethics: Gender Selection
 The application of scientifically administered sex
selection techniques isn’t permitted in Australia, but it
hasn’t always been this way. From 1999 to 2004 sex
selection options were available in NSW until the
National Health and Medical Research Council of
Australia (NHMRC) strongly advised against it on ethical
grounds.
 The NHMRC guidelines do permit, however, the process
of sex selection using PGD (pre-implantation genetic
diagnosis) to avoid the risk of transmitting a serious
genetic condition. For example, couples carrying genes
for haemophilia and muscular dystrophy, which are
health conditions that affect only males. They may legally
investigate the possibility of PGD to produce a female
through IVF.
Ethics: Embryo
Screening
(karyomapping)
"Knowing that you, your partner or
family has a known genetic
condition, and wanting to avoid
passing this condition on to your
child is a real issue for many
couples," he said.
"Sadly some couples have
endured the loss of a child born
with an inherited condition or had
family members severely affected.
"This technology is yet another
advancement in our long and
proud history of IVF and those
couples that have already
accessed karyomapping genetic
testing are looking forward to the
birth of healthy babies."
Ethics: Age
Specialists interviewed at the
annual conference of the
European Society of Human
Reproduction and Embryology,
closing in Lisbon on Wednesday,
highlighted ethical concerns about
the mother’s age and risks for the
babies.
There is no international
regulation of fertility treatment and
national guidelines are based on
medical opinion.
A general age limit for IVF is about
50, close to the typical onset of
menopause, the experts said.
Women in Germany today live to
around 85, “so you could argue
that a 65-year-old’s got 20 years
and could see that child through to
adult life”, said Adam Balen, a
professor of reproductive medicine
and chairman of the British
Fertility Society.
IVF doctors slam 65-year-old mum of quads
Annegret Raunigk
Ethics: Wrongful
Birth
In 2009, the High Court
upheld a decision of the
ACT Court of Appeal
awarding the lesbian
mothers of IVF twin girls
damages of $80,990.59,
for the birth mother, and
$236,495.70, for both
parents. It is believed
there have been other
claims for similar
"wrongful births" resulting
from IVF, but they have
been settled before
reaching court.
Ethics: Wrongful
Birth
Justice John Hislop found Dr
James had failed to ensure the
Wallers were properly informed
about the risks of inheriting ATD,
and that had they been so
informed, they would not have
given birth to Keeden.
But he said the Wallers had not
proved Keeden's stroke had
actually been caused by the
blood-clotting condition. He
accepted the evidence of a
medical expert called by the
defendant that Keeden's
antithrombin condition ''at most
was a minor contributing factor
and was possibly irrelevant to the
outcome''.
IVF parents lose $10m wrongful birth case
Case: B v J (1996)
 The court held that the sperm donor was not the
legal parent of the child in question and could not be
liable for child support.

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3.2 surrogacy and birth technologies

  • 1. Surrogacy and Birth Technologies Contemporary issues concerning family law
  • 2. Surrogacy An arrangement where a woman carries a child on behalf of a couple unable to have children, either by artificial insemination from the man or implantation of an embryo from the woman
  • 3. Historically…  Until recently, the law in NSW assumed the birth mother (and her partner if one existed) was the legal parent, so the surname on the birth certificate was hers.  This meant that the parents actually raising the child faced problems enrolling them in school, making decisions about their health care, and gaining access to services like Medicare.  The child was potentially denied legal rights, such as access to inheritance.
  • 4. Legislation  Surrogacy Act 2010 (NSW) came into effect on 1 March 2011  It allows the intended parents of a child born through surrogacy to apply to the NSW Supreme Court for a parentage order thirty days after the birth.  If it is granted, they gain full parenting rights, and their name on the child’s birth certificate.
  • 5.  To be eligible:  the surrogacy must be altruistic;  the birth mother must be at least 25;  all parties must have received legal advice and counselling, and  must have given informed consent to the agreement prior to conception and  the child must be living with the intended parents at the time of application.  the surrogate mother is legally entitled to have her expenses covered by the intended parents, including medical, legal and counselling bills.
  • 6. Case: Application of MM and KF re FM [2012] TWO men have become the first same-sex couple in NSW to be declared the parents of a baby that was born through a surrogate, with a court ruling it was in the child's "best interests". In transferring the guardianship of the child to the two men, a Supreme Court judge was satisfied the pregnancy wasn't the result of an illegal commercial agreement and that the woman who carried the baby wasn't paid to do so. The child, born in April, 2010, now has the two Sydney men as parents, with the birth mother agreeing to no longer be recognised on the birth certificate. The court heard the three had only an "oral arrangement" for the surrogacy but an affidavit from the birth mother was tendered, indicating she "consents" to the two men being declared the parents. The Surrogacy Act imposes penalties of up to two years jail or a $110,000 fine for people found to have entered into a commercial surrogacy arrangement where a woman is paid to carry a child for a couple who cannot sustain their own pregnancy. Altruistic surrogacy, when a woman isn't paid for the pregnancy except for medical expenses, is rare but permitted in NSW - with the new legislation intended to make it easier for parentage to be transferred.http://www.dailytelegraph.com.au/news/nsw/two-dads-and-a-surrogate-create-legal-landmark/story- e6freuzi-1226377828528
  • 7. Media: When altruistic surrogacy goes wrong Altruistic surrogacy is the only kind permitted in Australia but it doesn't always end with everyone happy. In the case of Diane*, 40, she offered to help out a couple with whom she had been friends for 20 years and agreed to carry their child. But the arrangement ended with legal action, a screaming door-stop confrontation between the mother and the surrogate, a tussle in the delivery room and ugly postings on Facebook. Surrogacy rates in Australia are low. In 2011, only 80 women offered their bodies for altruistic surrogacy, according to Michael Chapman of the University of NSW and a fertility specialist with IVF Australia. It usually involves an agreement between family members or less frequently between friends. It is illegal to pay a surrogate in Australia but the surrogate can claim medical bills and any other out-of-pocket expenses. … Commercial surrogacy is illegal in Australia, apart from the Northern Territory, which has no laws governing surrogacy. NSW, Queensland and the ACT have made it an offence for residents to enter into commercial surrogacy abroad and can impose penalties of jail for up to two years. Diane believes the system of altruistic surrogacy offers little protection for the surrogate. "That's why people are going abroad," she said. "I carried the baby, I birthed it and I handed her over. I did three rounds of IVF. I always believed that Australian surrogates shouldn't be paid. Now I think it needs to be done like a business transaction. You pay the surrogate so there's no backlash afterwards." http://www.smh.com.au/national/when-altruistic-surrogacy-goes-wrong-20140807-101bo5.html#ixzz3kxnd4Fqi
  • 8. There are now an estimated 1500 surrogacy centres across India. In the space of a decade or so the surrogacy industry has grown to what one industry observer has estimated to be a billion dollar industry. But it’s exploded in a place where regulation has been lagging well behind the boom. So there are pitfalls for aspiring parents and perils for surrogates as well. Many surrogates are from very poor backgrounds, have little or no education and certainly limited or non-existent financial literacy. There are concerns that some are pressed into the industry by their husbands and families as a quick way to make an otherwise unimaginable $7000AU per birth. Supporters of the industry say the money is vaulting them out of poverty and into their own homes, an education and the prospect of a much brighter future.
  • 9. Baby Gammy  Baby Gammy was born with Downs Syndrome (& other health issues) to a 21yo surrogate mother – his Australian parents took his twin sister back to WA, but left him in Thailand  It was later revealed that the Australian father (David Farnell) had a number of child-sex convictions dating from the 1980s & 90s  Thailand has since banned foreigners from commercial surrogacy, and raised domestic surrogacy age to 25  Baby Gammy has received Australian Citizenship.
  • 10. In-Vitro Fertalisation A reproductive technology in which an egg is removed from a woman, joined with a sperm cell from a man in a test tube (in vitro).
  • 11.  Since 1980 when the first child of IVF was born, the number of children born as a result of this technology has grown exponentially to 85 000 in 2010.  The law says that if a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was in a marriage or de facto relationship with another person, and the woman, her spouse and the donor of the genetic material consented to the procedure, then the child:  Is the child of the woman and her spouse; and  Is not the child of the donor of the genetic material.
  • 12. Legislation  Assisted Reproductive Technology Act 2007 (NSW) requires ART providers to be registered with the NSW Ministry of Health and sets core standards for the provision of ART treatment.  Aims to prevent the commercialisation of human reproduction, and to protect the interests of the following persons:  a person born as a result of ART treatment;  person providing a gamete for use in ART treatment or for research in connection with ART treatment;  a woman undergoing ART treatment
  • 13.  gametes can only be used in a manner consistent with the gamete provider's consent, so individuals retain control over the use of their own genetic material;  anonymous donation of gametes is prohibited;  ART providers are required to place information about donors on a Central Register which children born as a result of ART treatment can access once they turn 18 years of age;  There is also a Voluntary Register for offspring born prior to the commencement of the ART Act.
  • 14. Ethics: Gender Selection  The application of scientifically administered sex selection techniques isn’t permitted in Australia, but it hasn’t always been this way. From 1999 to 2004 sex selection options were available in NSW until the National Health and Medical Research Council of Australia (NHMRC) strongly advised against it on ethical grounds.  The NHMRC guidelines do permit, however, the process of sex selection using PGD (pre-implantation genetic diagnosis) to avoid the risk of transmitting a serious genetic condition. For example, couples carrying genes for haemophilia and muscular dystrophy, which are health conditions that affect only males. They may legally investigate the possibility of PGD to produce a female through IVF.
  • 15. Ethics: Embryo Screening (karyomapping) "Knowing that you, your partner or family has a known genetic condition, and wanting to avoid passing this condition on to your child is a real issue for many couples," he said. "Sadly some couples have endured the loss of a child born with an inherited condition or had family members severely affected. "This technology is yet another advancement in our long and proud history of IVF and those couples that have already accessed karyomapping genetic testing are looking forward to the birth of healthy babies."
  • 16. Ethics: Age Specialists interviewed at the annual conference of the European Society of Human Reproduction and Embryology, closing in Lisbon on Wednesday, highlighted ethical concerns about the mother’s age and risks for the babies. There is no international regulation of fertility treatment and national guidelines are based on medical opinion. A general age limit for IVF is about 50, close to the typical onset of menopause, the experts said. Women in Germany today live to around 85, “so you could argue that a 65-year-old’s got 20 years and could see that child through to adult life”, said Adam Balen, a professor of reproductive medicine and chairman of the British Fertility Society. IVF doctors slam 65-year-old mum of quads Annegret Raunigk
  • 17. Ethics: Wrongful Birth In 2009, the High Court upheld a decision of the ACT Court of Appeal awarding the lesbian mothers of IVF twin girls damages of $80,990.59, for the birth mother, and $236,495.70, for both parents. It is believed there have been other claims for similar "wrongful births" resulting from IVF, but they have been settled before reaching court.
  • 18. Ethics: Wrongful Birth Justice John Hislop found Dr James had failed to ensure the Wallers were properly informed about the risks of inheriting ATD, and that had they been so informed, they would not have given birth to Keeden. But he said the Wallers had not proved Keeden's stroke had actually been caused by the blood-clotting condition. He accepted the evidence of a medical expert called by the defendant that Keeden's antithrombin condition ''at most was a minor contributing factor and was possibly irrelevant to the outcome''. IVF parents lose $10m wrongful birth case
  • 19. Case: B v J (1996)  The court held that the sperm donor was not the legal parent of the child in question and could not be liable for child support.