Australia, we love you for your adorable accents, opera houses, and exotic animals. I even honeymooned on your beautiful coast. But you are really blowing it on the surrogacy front.
Australia’s legislature and judiciary — like those in much of the world — have struggled with the rules on surrogacy. In the meantime, Australian couples who are desperate to expand their families have traveled around the world to conceive using assisted reproductive technology (“ART”).
The Latest Case Law Disaster. The Bernieres (who go by the worst pseudonym in the history of legal cases — way worse than Doe or Roe), were an Australian couple who couldn’t conceive the old-fashioned way. Unable to have a child without help, they journeyed from their home in Melbourne to a fertility clinic in India. The hopeful parents-to-be were advised that their best chances to conceive were to use an anonymous egg donor, and a gestational carrier. The couple entered into the arrangement in 2013, and in 2014 their child was born. They brought a baby girl back to Australia. But they made the mistake of asking a Victorian court to bless the arrangement, and declare them legal parents of their own child. The court did not feel so inclined.
Justice Berman, the trial judge, agreed to let the child remain in the Bernieres’s care; however, he determined that they could not be found to be parents of the child because they did not meet the terms of the Victorian surrogacy statute, Section 60HB of the Family Law Act. The narrow statute requires that (1) surrogacy only be undertaken through a Victorian registered ART provider, (2) the procedure must be carried out in Victoria, and (3) the arrangement can only be altruistic (the surrogate cannot be paid). Further, the judge determined that without specific authority to find the Bernieres as parents to the child, his hands were tied.
Justice Berman acknowledged that his ruling was deeply problematic for the child at issue, and noted the need for “urgent legislative change.” Two years later — and with no legislative change in sight — the case went up on appeal before the full panel of the Australian Family Court. In September 2017, the Family Court made its ruling. The Court affirmed the judgment that the judiciary had no authority to declare the Bernieres as the legal parents of the child. Here’s the order. It’s a megabummer.
To be fair, many, or perhaps most, of these families, quietly raise their children without making the mistake of asking for a court order. Most get away with it without anyone questioning them. But for the Bernieries and others like them, the lack of legal recognition can be a real problem when it comes to inheritance, school enrollment in some places, and … citizenship.
Are The Children Even Entitled to Live in Australia? Stephen Page, a prominent Australian family law attorney, notes that the citizenship issue is a significant one. Prior to this ruling, the Department of Immigration had taken a different view from the Family Court on 60HB, thinking it did not apply to international surrogacy arrangements. Here is Page’s full post regarding the case on his blog.
Page argues that “if the Department of Immigration and Border Protection takes the view, consistent with the Family Court, that section 60HB of the Family Law Act covers the field — then many children born outside Australia through surrogacy (with limited exceptions) would not be recognised as the child of a parent for the purposes of Australian citizenship. Therefore the child would not be entitled to Australian citizenship and would therefore not be entitled to live in Australia.”
After many hours of reflecting on the case, Page says he has come to the opinion that for most people the case won’t impact the citizenship of the child. However, a whole host of other problems are likely, including accidental disinheritance and lowering the ability to prevent child abduction. Page strongly advocates for a remedy. “Children deserve to have their legal relationship match up with their reality. Failure to do so by Australia is a failure to recognize the rights of these children to an identity.”
Clearly, a fix needs to come from the Australian legislature. But with the country undertaking a contentious and historic vote on the legalization of same-sex marriage this week, Australians have a lot on their mind. But when you get a chance, Australia, try to see that these kids have parents and a country to call home.
Read More: Above the Law
By: Ellen TrachmanBack to News
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