Tuesday, February 9, 2010

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

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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]

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

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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.

"The Bligh government knocked back same-sex adoption, but is now going against the logic in that decision by creating situations where a surrogate child could end up with two mummies or two daddies or even just one parent - right from birth," Mr Wallace said in a statement on Tuesday.

"This is experimenting with children's lives and at this stage they have no way of really knowing just how devastating the effects on the children will be, or the extent of identity confusion that will result.

"We've already had to make amends to a Stolen Generation and a Forgotten Generation - is this the next one?"

He said the state had a moral duty to act in the best interest of all children.

"The state should not be accommodating the desires of single men, single women, two men or two women to do what is not possible in nature - that is to have babies," he said.

"We urge all Queensland parliamentarians to consider the needs of children and reject this bill or at the very least to split the bill so that MPs can have a true conscience vote on the separate issue of whether to permit single people and same-sex couples to have children via surrogacy."

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]

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Saturday, February 6, 2010

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

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My PhotoStephen 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:

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]

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

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My PhotoStephen 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]

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Friday, February 5, 2010

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

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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.

"The number of children overall - not just in Australia but also inter-country - has fallen quite dramatically from a peak of around about 10,000 in the early 1970s," he said.

"Now there's only just over 400 overall. There's a range of reasons and it's quite a complicated set of situations.

"But there's things such as more effective birth control available nowadays than there was say 25 to 30 years ago, also family planning centres and sexual education classes are becoming more prominent.

"There's also changing social views on the ideas of parenthood and raising children. For example, the idea of raising children outside of marriage in Australia nowadays is much more acceptable.

"And also there's the development of things such as IVF."

He says of the 441 children available for adoption, only about 40 per cent were born in Australia.

Foreign country adoptions

Australia has inter-country adoption arrangements with 14 foreign governments, with most of the children coming from four places.

About a quarter are adopted from China, 17 per cent from the Philippines and the same from South Korea, and about 14 per cent are from Ethiopia.

"Since about the mid 1990s we've seen fairly stable trends in those countries," says Mr Beard.

"That's really due to the formal arrangements that we have in place with those countries that have been set up through the policy departments."

However adoptions from Ethiopia were suspended by the Federal Government late last year after concerns about a request from Ethiopia that Australia enter into a formal aid agreement as part of the arrangement.

It has left a lot of prospective adoptive parents very upset.

'Stolen children' scandal

The Government says a review is continuing, as is an examination of arrangements with some providers in India after a scandal over alleged stolen children.

Adoption advocate Trevor Jordan from the group Jigsaw supports the Government's caution.

"While the parents are experiencing a great deal of anxiety, child-centred policy is very important in this area," he said.

"Our experience in the last 10, 20 years of inter-country adoption is that if we don't attend to good process and market forces take over, people will exploit the situation."

Meanwhile, there is another statistic not included in the figures: another 112 children adopted from foreign countries.

That is achieved by people living overseas for at least a year and therefore not being governed by Australian law. It might include same-sex couples or single people.

Mr Jordan says the laws should be more liberal here anyway.

"In places like the US for example same-sex couples and single parents have stepped up to the breach to provide permanent families for those children," he said.

"People make general rules about what's desirable for a family, but if the overall goal is to see that adoption is about finding families for children and not children for families, then we look at our eligibility criteria somewhat differently."

[Source: Original Article]

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Monday, January 11, 2010

Herald Sun - “Non-birth parents can now be named on birth certificates” by Sally Bennett

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LITTLE Drew Hardy-Hughes and her two mothers are now legally recognised as a family in Victoria.

Sweeping January 1 changes to the state's reproductive laws mean that non-birth parents can now be named on birth certificates.

Drew's parents Eilis Hughes and Kristen Hardy, of Werribee, were among the first lesbian couples to act on the landmark legislation.

The birth certificate of their two-year-old daughter, conceived using a known donor, will now list Ms Hughes as the birth mother and Ms Hardy as the other "parent".

"Symbolically it's huge," Ms Hughes said. "It says that we are a family unit and no one can dispute that.

"We had to fight to be visible, and it was also insulting to Kristen, who's done all that hard parenting work, for there to be nothing to say that she is a parent."

Eilis Hughes, Kristen Hary and their daughter Drew

The victory for the gay and lesbian community sparked outrage last year when it was revealed that all couples seeking fertility treatment would be forced to have police checks once the new laws were enacted. The move, designed to ensure that IVF patients are fit to be parents, was condemned as discriminatory and insulting to couples struggling to conceive.

Other changes to the Assisted Reproductive Act included recognition of "social" as well as "medical" infertility, meaning single women, gays and lesbians can access IVF treatment or commission a surrogate.

The new laws also mean children conceived using donors have the right to find out about their biological heritage once they turn 18. Ms Hughes said the Act was in the best interests of children.

"It's better for a child to know if they were donor- conceived and it's better for a child to have both parents named on a birth certificate," she said.

"Previously we needed a court order to say that Kristen has equal legal responsibility."

Victorian Registry of Births Deaths and Marriages spokeswoman Erin Keleher, said the department was delighted it can recognise rainbow families. "It's on the vanguard of social change," she said.

[Source: Original Article]

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Thursday, January 7, 2010

Sydney Morning Herald - “Gay Adoption Ban to Stay” by Brian Robins

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THE State Government has decided not to allow same-sex couples to adopt, ignoring a parliamentary inquiry that said changing the law would ''ensure the best interests of children''.

The Government said yesterday there was insufficient community support to justify new legislation on the topic.

Groups representing same-sex couples denounced the decision, saying an opportunity to redress discrimination had been missed.

''There are very deeply held, divergent views on this issue and that is why a decision on this matter will not be taken at this stage,'' the Minister for Community Services, Linda Burney, said yesterday.

Kellie McDonald, of the Gay and Lesbian Rights Lobby, said the decision was ''extremely disappointing''. ''If the NSW Government's primary concern was the interests of the children, it would rectify the discrimination of the NSW Adoption Act,'' she said. ''I'm not sure what more can be done.''

The director of the National Children's and Youth Law Centre, James McDougall, said his organisation had argued to the committee that children, ''particularly children of families without legal recognition, wanted this change''.

Judy Brown, of Parents, Families and Friends of Lesbians and Gays, said ''to suggest that same-sex couples may not adopt is, on the basis of all the evidence available, patently discriminatory and simply highlights ignorance and bigotry''.

[Source: Original Article]

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