International Commercial Surrogacy Vs. Human Trafficking Court Perspectives

1. International commercial surrogacy: Whether it is Human Trafficking or Modern Families, it is the court’s business to find the eye of the storm. International Commercial Surrogacy (ICS) and Human Trafficking (THB) Presented by Felicity Gerry QC, Barrister London and Darwin Chair RRTC, School of Law, Charles Darwin University, Australia. Taken in part from a forthcoming paper by Felicity Gerry QC, The Hon. Anthony Graham QC and Celia Moodieand from Health Law Central:

2. ICS involves individuals and couples travelling across international borders for the purpose of entering into commercial surrogacy agreements, with the intention as parent(s) of repatriating a child born of those arrangements. At its most fundamental, “[surrogacy] is defined as a woman carrying a pregnancy for a third party, with the express intention of giving up all parental and custody rights to the resulting child(ren). Surrogacy can be traditional, where the surrogate carries a child using her own eggs (fertilised with sperm from either the intended father or a third-party donor), or (more commonly) gestational, where the surrogate is implanted with an embryo developed from the eggs and sperm from any combination of the intended mother and father and/or from third-party donors.” • It may, as a result, include up to 5 parents, including the commissioning parents, the surrogate, the egg donor, the sperm donor, or a donated embryo by two other parties. It is commercial surrogacy where there is an agreement to pay an amount which exceeds those expenses directly related to the pregnancy and delivery of the child, which is different from altruistic surrogacy - currently the only legal form in Australia. Given that ICS may involve donors, surrogates and commissioning parents from different countries, many complex ethical and legal considerations arise. • Sam Everingham, ‘Use of Surrogacy by Australians: Implications for policy and law reform’ (2014) Families, policy and the law:Selected essays on contemporary issues for Australia, Eds. Alan Hayes and Daryl Higgins, Australian Institute of Family Studies, 67. • Kathleen Simmonds, ‘Reforming the surrogacy laws of Australia: Some thoughts, considerations and alternatives’, Flinders Journal of Law Reform, Vol. 11(1), p.99; Joan Einwohner, ‘Who Becomes a Surrogate: Personality Characteristics’ in Offerman-Zuckerberg, Joan (ed), Gender in Transition: A New Frontier (New York, Plenum Press, 1987) 123-149. What is ICS?

3. India surrogacy case: Documents show New South Wales couple abandoned baby boy despite warnings http://www.abc.net.au/news/2015-04-13/australian-couple-abandon-baby-boy-in-india-surrogacy-case/6387206 • Baby Gammy case: Thai surrogate mother applies for baby boy with Down syndrome to become Australian citizen http://www.abc.net.au/news/2014-11-21/baby-gammy-to-become-australian-citizen/5908174 • China's flirtation with surrogacy, as the one-child policy comes to a close. Sydney Morning Herald: http://www.smh.com.au/comment/chinas-flirtation-with-surrogate-motherhood-as-the-one-child-policy-comes-to-an-end-20151230-glx5hr.html#ixzz3xf7SVbzK News on ICS

4. Over recent years Australia has become a significant market for international commercial surrogacy (ICS). • In 2011-2013, while six children were born via surrogacy arrangements in Australia, 364 children were born to Australians via ICS in India alone, where there are now an estimated 600 IVF clinics assisting 60,000 parents a year. • The Family Law Council noted that Australian citizenship by descent for 2012 to 2013 included 186 surrogacy births in India and 21 in Thailand. • There appear to be a number of reasons, stemming from issues around lack of access to legal commercial and compensated surrogacy in Australia, diverse legislative schemes in the various states and territories, many of which are discriminatory against the various permutations of parents and families which are now broadly accepted by society and, undoubtedly, cost. • As public interest litigation is presented in India in 2015 seeking to ban imported embryos, the difficulties of Australian prospective parents are highlighted Some Figures for ICS

5. At an Asia Pacific Initiative on Reproduction (ASPIRE) Congress, Professor Norman said it was “a paradox that couples from developed countries like Australia were travelling to other places to access techniques that were devised in their own country.” In more general terms, according to ASPIRE, the reasons include: • a particular type of treatment may be forbidden by law; • certain categories of patients, for example same sex or unmarried couples, may not be eligible for assisted reproduction; • waiting times may be too long, for example egg donation; • costs are too high; • a particular technique or equipment may not be available or existing techniques may not be considered safe enough; and • privacy, particularly in cases of prominent personalities through stigma of infertility • ICS is attractive to those who feel hindered at home by such reasons. However, the consequences can be devastating, not least because ICS will not automatically result in legal parentage as it is not recognised as lawful. This leaves the intending parents to apply to the Courts to obtain either legal parentage or parenting orders with no guarantee of success. Why ICS?

6. Although often depicted as a simple clinical transaction, the uncomfortable reality is that ICS involves Australians paying women in developing countries, usually through an intermediary - a clinic or agent, to use their bodies to produce a baby. • The potential for exploitation is high. ICS involves surrogacy services being sourced by Australians internationally, rather than domestically. • Most countries throughout the Asia Pacific region have some form of guidelines or regulations controlling assisted reproduction, however there are no standard guidelines across those countries. • Chief Federal Magistrate Pascoe AO CVO has observed that it is “morally reprehensible for developed countries to be involved in exploiting the vulnerability of women in developing countries, whilst banning the practice at home”. He has suggested that “developed countries with an effective Rule of Law, should make ICS illegal but make domestic commercial surrogacy legal to allow proper regulation, supervision, and protection for all parties involved.” • The real question is whether this would stem the tide, particularly where legitimate global movement of people is now so prevalent. The context of ICS

7. These issues are not uniquely Australian and have implications for ICS across the Asia Pacific region and beyond. In September 2014 Thailand, a major international hub banned ICS following the Baby Gammy case. There were concerns this would result in relocation to Cambodia, where it would be less regulated, but the Royal Cambodian Government also introduced prohibition. • In July 2015, the Indian Government placed restrictions on Australians seeking to access surrogacy treatment which effectively prevents any person obtaining the requisite medical visa, other than those currently subject to an arrangement. • There is almost inevitability that promoters of commercial surrogacy will search for markets for surrogates particularly where surrogacy remains available in the U.S. and advertised at between $100,000 USD and $150,000 USD. In such circumstances there are bound to be concerns about the freedom and capacity for donors to consent. • In addition, those without significant resources but desperate for a child are likely to consider surrogates in countries with less regulation, less medical facilities, greater risk and even more probable exploitation of the surrogate mother. This increases the risks further for children, surrogates and intending parents. International Aspects

8. According to Judge Pascoe, “The child’s rights are severely compromised in an ICS environment as the new-born has no way of being able to defend itself.” Article 3 CRC requires that “in all actions concerning children” that the rights of the child be paramount.Articles 7, 8 and 9 provides that “the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.” There are additional rights for children with disabilities. • Rights to an identity focus on the right to a relationship with both parents. In Australia this has been particular acutely perceived in the context of Indigenous families. It seems contradictory and counter-intuitive that other groups potentially be denied their genetic link through surrogacy: The issue is highly emotive: “knowing the biological parentage for me would be one of the first steps and I think we have a responsibility as a country to make sure that the worst aspects of commercial surrogacy are overcome.” • A Parenting/Surrogacy Project at the Hague concluded that there was a need for multilateral approach in light of cases where “intending parents resided in a different State from the State of their nationality, or due to the fact that the gamete provider(s) and surrogate mother resided in different States)”. • In addition, while it might be argued that payment for services is a commercial transaction between the commissioning parents and the surrogate, it may also be contended that the transaction commodifies the child. Children under Article 35 of the CRC, have the right not to be sold which Tobin has suggested is a strong argument as has Pascoe “…the presence of a contract and payment for services rendered, reduces a new born child to the status of tradable merchandise.” Others argue that ICS, “when properly regulated, does not constitute the sale of children, and do not violate the CRC”. • The question of whether ICS may involve more “sinister aspects” has been raised by Australian Courts. The emergence of “The Child Exchange Network” sees children treated as commodities. The National Children’s Commissioner Megan Mitchell, has described surrogacy as a “booming business’’, cautioning that “[a] child is not a commodity”. ICS arrangements raise issues in both Family Law and in relation to the human rights of those affected by such arrangements, especially vulnerable women and children.” Child Rights and ICS

9. International law states that human trafficking is the process of coercing or luring human beings into exploitation – in other words, it is the business of exploitation. • Because human trafficking includes – but is not limited to – the movement of people for the sake of exploitation, human trafficking, as defined by international law, it is the umbrella term for all forms of coerced or nonconsensual exploitation. • It intersects most notably with slavery and forced labour. Article 3, UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organised Crime, 15 November 2000 (“the Trafficking Protocol”). What is THB

10. In 2013, the United Nations Office on Drugs and Crime (UNODC) Report identified human trafficking as a major issue and found that human trafficking is on the rise in a quarter of countries around the world. Australia is already known as a destination country for human trafficking although it can also happen within country. • The practice of human exploitation is already recognised as highly lucrative. A 2014 International Labour Office (ILO) report estimated that 20.9 million men, women and children are in forced labour globally, trafficked for labour and sexual exploitation or held in slavery like conditions: • The estimated total profits made by forced labour each year worldwide was estimated in 2012 at US$150.2 billion per year with profits highest in Asia (US$51.8 billion). One of the report’s conclusions was that ‘there is an urgent need to address the socio-economic root causes of this hugely profitable illegal practice if it is to be overcome.’ It is perhaps notable here that fertility is a highly profitable industry even when not linked to human trafficking, one enterprise raising over $30m in capital. • Making money from the exploitation of women as surrogates is clearly a human rights issue and one that engages the Trafficking Protocol. On the question of exploitation or mutual assistance, Vinita Lavania explains that “Commercial surrogacy in India has grown into a multimillion-dollar industry since a Supreme Court judgement made it legal in 2002. Couples from around the world now travel to India to seek the services of surrogate mothers, at a cost that is only a fraction of what they would pay for comparable services in their home country.….. Some call it India’s “next big outsourcing business”, and commercial surrogacy’s most virulent critics call it a trade that involves exploitation of women”. Some figures for THB

11. Lavania explains it is sometimes referred to in very emotional terms like “wombs for hire”, “baby industry”, or “fertility industry” and goes on to outline the opposing argument quoting a doctor working in the field: “There is a woman who desperately needs a baby and cannot have her own child without the help of surrogate. And at the other end there is this woman who badly wants to help her own family. If this female wants to help the other one ... why not allow that? It’s not for any bad cause. They are helping each other.” • It is the tension between these two extremes that faces courts when an ICS arrangement is exposed in a Court application for a parenting or other order Where ICS and THB intersect

12. It is here that courts need to recognise that not every surrogacy arrangement may arise from desperate parents and that there is a risk of enabling a much more serious trade in children by failing to ensure proper background checks. Judge Pascoe has expressed concern at the intersection between international baby selling and human trafficking, noting that “not infrequently this involves the trafficker declaring himself the biological father of the child and the birth mother refuting her parental rights.” Coercion may be used and discrimination against women and poverty are major reasons why some women see no option other than to abandon or sell their babies. For these reasons alone, courts cannot and should not ignore the circumstances of the birth of a child when considering its best interests after a commercial arrangement even if that means involving government child protection departments in private family law applications. Ultimately there is a public interest in ensuring that courts are making decisions about children on accurate and properly investigated evidence. Why ICS is the court’s business

13. Australian law on surrogacy remains a “patchwork”. All states and territories with the exception of the Northern Territory have enacted legislation on surrogacy, with minimal consistency. Altruistic surrogacy is permitted in all jurisdictions, with the surrogate’s “reasonable expenses” recoverable in those states and territories. This is distinguished from compensated or commercial surrogacy, which is universally prohibited save for the Northern Territory where technically, at least, it may be permissible. • In all jurisdictions, advertising surrogacy services is an offence. The provisions in the states of QLD, NSW, VIC, TAS and WA all state that surrogacy agreements are unenforceable, except for the recovery of the surrogate’s reasonable expenses, SA and the ACT provisions are silent on this point, but by definition a ‘recognised surrogacy agreement’ and ‘commercial substitute parent agreement’ respectively allows payment of surrogacy expenses. NT remains silent on all issues. NSW, QLD and ACT have, in addition, legislated extraterritorially to prohibit ICS. It is probable that the domestic prohibition of commercial surrogacy, as well as the complexity of these various legislative regimes throughout Australia, have led in part to the creation of the growing demand for ICS. • In terms of ICS, South Australia has been the first state government to move towards regulation of the issue, recently amending its legislation, the Family Relationships Act 1975 (SA) to address international surrogacy agreements. The amendments require couples seeking to enter into such an agreement to have it approved by the State Attorney-General. The rationale behind the law is that any application for approval will require the intending parents to show reasons that they are unable to access surrogacy in Australia. The new laws are complemented by a suite of reforms intended to make the process for accessing surrogacy easier in SA, in an attempt to regulate potential exploitation on women and children. • The legislation will continue to prohibit commercial surrogacy. While allowing compensated surrogacy was proposed in the initial drafting of the amendments, this was not pursued to enable to the legislation to pass through. However both The Family Relationships Act 1975 (SA)and the Assisted Reproductive Treatment Act 1988 currently continue to discriminate against single persons and some same-sex couples. While these SA amendments are undoubtedly timely, it is yet to be seen whether they are capable of regulating ICS, given issues of extra-jurisdictional effect are untested in relation to those states where commercial surrogacy is currently prohibited interstate and overseas. • In every jurisdiction except Tasmania, this offence involves a term of imprisonment. We have found no evidence that this is being used or enforced. Australia and ICS

14. In the majority of the cases, at least one of the commissioning parents is the genetic parent of the child, which allows citizenship by descent to be determined by immigration and may be used for the purpose of declaring legal parentage. However this is not always the case. • In relation to people entering Australia with children born overseas, determining who is the parent is an important question. The 2013 submission from the Department of Immigration and Citizenship (DIAC) to the Family Law Council (FLC) set out the ICS issues: In order to enter Australia, “a child born overseas must apply (and be eligible) for either Australian citizenship (by descent) or a visa for Australia.” It would appear that where one commissioning parent is the biological parent then that may circumvent any discussion about surrogacy, and the other commissioning parent (if not the genetic parent) may seek parenting orders in the Family Court. • There is no requirement that the Courts recognise a birth record from a foreign jurisdiction as bestowing legal parentage on a commissioning parent. Current immigration and citizenship law allows a person to be a ‘parent’ even where there is no genetic relationship between the intending parent and the child, as “there remains no central definition of ‘parent’ and ‘child’ in federal law and each Act is open to a purposive interpretation based upon its own terms.” Gaining citizenship is distinct from legal parental status, which must be conferred by the states separately from the gaining of Australian citizenship. The consequence is that Family Courts are left to sort out the mess after the child has crossed a border. Citizenship and ICS

15. There was an inquiry in 2013 by the Family Law Council (FLC) into parentage where a child is born via ICS, which drew submissions from many interested groups. Although each submission reflected the unique perspective of the group making the submission, the overriding consideration which emerged was the legal status of the child, whether current law recognised the best interests of the child and significantly, whether legal parentage would be bestowed upon the parents following entry into Australia. Concerns were that the current laws discriminate against certain forms of families and moreover against the legal rights of the children born via ICS: • “The varying definitions of ‘parent’ across jurisdictions, the ambiguity of genetic heritage, and very real possibility of human trafficking all expose the new-born child to serious human rights violations, even in circumstances where all parties have good intent and are in agreement. The rights of the child are most commonly protected by its parents, however in cases where parentage is ambiguous or disputed, the child is exposed to being stateless or at least genetically bewildered.” Parents and ICS

16. Article 1 of the Convention of the Rights of the Child (CRC) defines a child as “a person below the age of 18”, whose “best interests … must be the primary concern in making decisions that may affect them”. Australian law, concerning children and ART generally, makes reference to these best interest considerations at both the state and federal level. Despite the paramountcy of these considerations, it has been argued that the human rights of children born via surrogacy are “less certain”. • Distinct from adoption, which places a strong emphasis on the welfare of the child in those arrangements, “[t]he rights of the child are not prioritised in surrogacy … as a child only comes into existence as a result of surrogacy arrangements. Instead the rights of the commissioning parents are prioritised and the interests of the child in prospect are unrepresented. • The legal analogy selected is natural birth, not adoption irrespective of the genetic relationship between the child and the commissioning party/ies.” • The prioritising of the rights of the parents over those of the child is inconsistent with the CRC requirement that the child’s best interests be the “primary” or “paramount” consideration. • Given that the current legislation requires the balancing of the public policy considerations around commercial surrogacy against the best interests of the child, “[p]arliament has placed the judiciary in a potentially difficult position.” Children and ICS

17. There are no specific laws in the Northern Territory governing surrogacy.  This does not however mean that surrogacy may be, or is, practiced. • Clinics must adhere to the National Health and Medical Research Council Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2007  in order to be accredited under the RTAC accreditation scheme. (See further information on Health Law Central about oversight of clinics that provide assisted reproduction). The NHMRC Guidelines provide that: • It is ethically unacceptable to undertake or facilitate surrogate pregnancy for commercial purposes. Clinics must not undertake or facilitate commercial surrogacy arrangements. • Noncommercial surrogacy is prohibited in some states and territories. In other states and territories, clinics must not facilitate surrogacy arrangements unless every effort has been made to ensure that participants: • have a clear understanding of the ethical, social and legal implications of the arrangement; and • have undertaken counselling to consider the social and psychosocial significance for the person born as a result of the arrangements, and for themselves. • Clinicians should not advertise a service to provide or facilitate surrogacy arrangements, nor receive a fee for services to facilitate surrogacy arrangements. The NT Law (HLC)

18. There is no provision to transfer legal parentage following a surrogacy arrangement in the Northern Territory. • Note, that a birth mother is recognised as the legal mother of the child(ren) she gives birth to  (in all states and territories of Australia). 1 There is no opportunity to remove her from this status unless she relinquishes the child for adoption. • If the birth mother is married or in a defacto relationship, her partner, if any, will be deemed the other legal parent of the child. • If there was a surrogacy arrangement, there would be no recognition of the commissioning person(s) as legal parent(s) in most situations, and no mechanism to transfer legal parentage to them. • That is, a sperm donor to a child conceived using artificial insemination or ART is not a legal parent under the Act. 2 • The only potential situation in which a male (‘commissioning person’) may be recognised as the legal father would be if he was the genetic father as a result of sexual intercourse. He would then have to meet the presumptions under, or make an application for a declaration of paternity pursuant to the ‘Status of Children ActNT’. 3 • However, even if this situation did occur, such circumstances may give rise to other legal issues and complexities – see further below. NT Parents [HLC]

19. It has been suggested that ‘technically’ commercial surrogacy could occur in the Northern Territory in relation to ‘traditional surrogacy’ arrangements. • Such suggestions appear to relate to the [hypothetical] situation in which a man could pay a woman to have sexual intercourse with him with the intention that she become pregnant and then hand over the child to him at birth. This would be done on the basis that he would be recognised as the ‘legal father’ of the said child under the Status of Children Act (NT), and that there are no explicit laws prohibiting commercial surrogacy. • However, stating that such a situation would be ‘technically’ lawful ignores the legal complexities of the matter. For example, • if the birth mother was married or in a defacto relationship, her partner would be presumed to be the legal parent of the child, and the presumption would have to be rebutted in a Court; • even if/when the paternity of the child is established, the birth mother would continue to be the legal mother of the child, and would continue to have legal rights and responsibilities regarding the child. For example: • if the child resided with the legal father, he could claim child support from her; • or, if the mother decided not to relinquish the child, and it continues to reside with her, she could claim child support from the legal father; and/or • family law proceedings could be taken by the birth mother or father claiming rights of visitation or residence orders in relation to the child. • if hypothetically, the man has a partner, and the intention was that the birth mother relinquish the child and the partner of the father would adopt the child, all parties would be in breach of the Adoption of Children Act NT, which prohibits payment or reward for, or in consideration of, the adoption of a child – either before or after its birth. 4 NT Technicalities [HLC]

20. Attorney-General’s Department (Commonwealth), Australia’s response to the List of Issues — Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 4-5 June 2012, available at http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/default.aspx. • Listed prohibitions of commercial surrogacy in other states as meeting our obligations under international law to prevent the sale and trafficking of children. NT and International Law

21. Proposed national reform often centres around whether commercial (or compensated) surrogacy should be permitted in Australia, with the assumption that by allowing it under domestic law, decreased demand for ICS would result. While this may be the case, there remains a significant likelihood that demand for ICS will continue to occur. • Therefore the issue with regard to the unique problems posed for law-makers by ICS, discussed throughout our paper, is the urgent need to identify an appropriate regulatory response. To date federal level responses to ICS have been confined to immigration, citizenship and family law which function as a stop-gap to questions of nationality and parentage in ICS cases. These responses do not adequately address the exploitation of the surrogate mother, the risks of harm to the children born via ICS and significantly; whether unregulated ICS permits child trafficking in Australia. • The need for a scheme for courts to apply whilst the legislature delays is vital and a legislative scheme to better address the ethical concerns surrounding ICS remains urgent. The essential problem is that, in the absence of legislative change, there are limits as to what the courts can do to recognise who is a parent, who should have a parenting order and how to protect the rights of the child. Proposed Reform – some of our research.

22. What do the courts do in the meantime? • Is “best interests” wide enough for courts to take a rights based approach? • Involving Child Protection authorities in private applications? • Could“appropriate arrangements” with parenting orders combined with specific issue orders to ensure maintenance of communication and responsibility between all parties concerned be an answer? In cases with five potential “parents” this could continue until the child is 18 and give the relevant court power to resolve any disputes over care? • Is there a need for an expert and identifiable panel of national and / or international judges and uniformity of practice mirroring the new distribution of court business approach in England and Wales. Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90. Best Interests and Court business – some of our thoughts.

23. Internationally, India is emerging as the world leader in ICS. Surrogacy has been lawful in India since 2002 although opportunities for foreign national have been curbed. • In 2012 in India it was observed that “the reproductive tourism industry was worth an estimated US$500 million, with over 600 surrogacy treatment clinics assisting 60,000 commissioning parents a year” and estimated at $450m a year in 2014. • There are few formal regulations and contracts are mostly informal. Clinics “are free to take or reject suggestions made by the National Guidelines for Accreditation, Supervision, and Regulation of assisted reproductive therapy (ART) Clinics in India issued by the Indian Council of Medical Research (ICMR) in 2005.” • This lack of regulation raises concerns about the potential exploitation and health risks to the surrogate. At worst, in cases where the surrogate has died from complications during the pregnancy or birth, there has been no legal liability nor responsibility assumed by either the clinic or the commissioning parents. • Judge Pascoe has raised concerns about the lack of informed consent in agreements such as the one relied upon in Mason, describing the notion as “laughable”. • The current public interest litigation in India relating to the importation of embryos has led to the Indian Government indicating it will ban ICS for foreigners. Lessons from India?

24. The current public interest litigation in India relating to the importation of embryos has led to the Indian Government indicating it will ban ICS for foreigners. The Indian Supreme Court has issued directions asking all parties to file submissions on questions set out on your handout. • In light of the recently announced Australian parliamentary inquiry into surrogacy, how would you answer these questions? Workshop Discussion