ࡱ> ` hbjbjss 5z`eXXXXXXXl8Dl-S8 8 N N N N ,!RRRRRRR$UhwW,RX#N N ##RXXN N R&&&#XN XN R&#R&&PlXX@R N , pMB$Q*RR0-SR*W%pWTLRWXLRL!h!J&!<"!!!RRV&^!!!-S####lll0dlll0llXXXXXX   Response to Position Paper 3 SURROGACY of the Victorian Law Reform Commission Enquiry Assisted reproductive technology and adoption should the current eligibility criteria in Victoria be changed? 16 January 2006 Introduction THE FERTILITY ACCESS RIGHTS LOBBY The Fertility Access Rights Lobby (FAR) was established in November 1999 to raise awareness of the discrimination and health risks inherent in the restriction of access to assisted reproductive technology specified by the Victorian Infertility Treatment Act (1995). Voluntary membership up until December 2004 has included over 100 people from diverse areas including lesbian and gay parents, prospective parents, single heterosexual parents, health care providers, counsellors, family therapists, lawyers and human rights advocates. FAR and the VGLRL joined the Victorian Gay and Lesbian Rights Lobby to become a working group of that broader organisation in December 2002. FARs aims include: advocacy for law reform to open access to donor insemination and adoption for lesbian, gay and single people; through representation on the Attorney Generals Advisory Committee on Gay and Lesbian issues, development of fact sheets, written articles and meetings community building to create connection between people creating diverse families community education about lesbian and gay family formation and support FAR has been supported by a range of organisations including VicHealth, the ALSO Foundation, Reichstein Foundation, Victorian Gay and Lesbian Rights Lobby, Gay and Lesbian Health Victoria, Womens Electoral Lobby, National Womens Justice Coalition, Womens Health Victoria, Womens Health West, Victorian AIDS Council, the Australian Council of Single Women and their 鱨վ, the Bouverie Centre (Family Therapy), the Australian Lesbian Medical Association, Port Phillip and Darebin Councils. Various community education events have been sponsored by Absolutely Womens Health, the health promotion unit the Royal Womens Hospital, and law firms including Slater and Gordon, Blackburn, and Kelly and Counsel. In August 2003, FAR organised the first Rainbow Families Conference, a community event that was attended by 150 people. In February 2005 a second Rainbow Families conference was held involving more than 250 people, including a large childrens program. An active Rainbow Families email group established at the first conference has maintained connections between a diverse and active population of people interested in lesbian and gay families. THE LOVE MAKES A FAMILY CAMPAIGN The Fertility Access Rights Lobby established the Love Makes a Family community education and lobbying campaign in December 2004, with support from the Victorian Gay and Lesbian Rights Lobby, and auspicing from the ALSO Foundation which enabled FAR to successfully apply for limited funding to the Reichstein Foundation. Since then, the campaign has been very active in the GLBTI (gay, lesbian, bisexual, transgender and intersex) community, as well as in the broader community, supporting and encouraging people involved in or supportive of GBLTI and other diverse families to get active in changing both the law (through participation in the VLRCs Enquiry) and social attitudes. The Love Makes a Family Campaign currently has a coordinating group, along with a number of working groups and an actively-involved email list of approximately 100 members (additional to the Rainbow Families list, with a membership of approximately 80). Activities to date have included media work, public forums, stalls at a variety of community events, public speaking and liaison with GLBTI and mainstream organizations and publication of resources including a website at www.lovemakesafamilyaustralia.org. THIS SUBMISSION This submission has been developed to be consistent with the FAR and VGLRL submissions made in the initial round of consultations in 2004 and our responses to the Commissions Position Papers 1 and 2, which were themselves developed by FAR and the VGLRL Lobby Members including a medical practitioner, lesbian and gay parents, community activists, VGLRL committee members and lesbian families researchers. Community discussions, for example at a surrogacy forum organized in conjunction with the community group Gay Dads Victoria have also been considered, as have responses to the Love Makes A Family survey and the Victorian Gay and Lesbian Rights Lobby survey conducted in 2004 and 2005. CONTACT DETAILS For more information about any of the issues raised in this submission, please contact Felicity Martin, Convener of the Fertility Access Rights Lobby, Coordinator of the Love Makes a Family Campaign and a member of the Victorian Gay and Lesbian Rights Lobby. Her contact details are: [details removed] email far_lobby@yahoo.com.au. Responses to VLRC Interim Recommendations ACCESS If a person or couple wish to commission a woman to carry a child on their behalf, a doctor must be satisfied that they are: in the circumstances in which they find themselves, unlikely to become pregnant, to be able to carry a pregnancy or to give birth; or likely to transmit a genetic abnormality or a disease to the child if they conceive a pregnancy; or likely to place their life or health at risk if they become pregnant, carry a pregnancy or give birth. The criteria in Interim Recommendation 1 should not apply to a woman intending to act as a surrogate. FAR supports Interim Recommendation 1, consistent with our responses to recommendations made in Position Paper 1 regarding access to ART services. FAR supports a definition of unlikely to become pregnant which does not require medical infertility, as under the current regime, but rather one which includes anyone unable to become pregnant, carry a pregnancy or give birth, whether because of medical infertility or circumstances. For the purposes of surrogacy this would include, for example, single men, gay male couples, and infertile single women, lesbian couples and heterosexual couples, where the type of infertility would indicate surrogacy as a form of ART treatment. Clearly we would support the application of these criteria to the commissioning person/couple, as indicated in Interim Recommendation 2, rather than to the woman (and her partner if she has one) intending to act as a surrogate mother. Surrogacy is a form of ART, and as such it only makes sense for access criteria to apply to the commissioning person/couple. It should not be necessary for a person who wishes to commission a woman to carry a child on his or her behalf to be married, to be in a relationship with a person of the opposite sex, or to be in a relationship with another person. FAR supports Interim Recommendation 3, as it has strongly supported all recommendations by the Commission that are based on removing discrimination, whether on the basis of relationship status, marital status or sexual orientation. As FAR and other community groups have noted in previous submissions, excluding people from treatment, for example on the basis of homophobic discrimination, does not prevent people from seeking ways in which to form their families. Rather, it makes it more difficult, stressful and often expensive, and forces people to find solutions which frequently take them outside the law, whether to other, more liberal jurisdictions (such as those gay couples able to afford to use surrogacy services in the US) or by making arrangements (such as informal partial surrogacy) in which the rights and responsibilities of none of those involved, including the children, are adequately protected by law. As has been amply demonstrated by longitudinal research summarized in the Commissions own Occasional Papers, children are in no way disadvantaged by their parents marital status or sexuality, for example if raised by same-sex parents. Their main disadvantage is in the form of discrimination against diverse families, whether in the form of institutionalized discrimination or social attitudes. FAR strongly supports the Commissions principle that the law has an important part to play in recognizing diverse families and countering discrimination. Therefore FAR strongly supports this Interim Recommendation, although we would prefer to see it framed more positively, for example in terms of eligibility being unaffected by a persons relationship status, marital status or sexual orientation. If, before a person or couple commission a woman to carry a child on their behalf, a doctor or counsellor believes that any child that might be born as a result of the arrangement may be at risk of physical abuse, sexual abuse, emotional or psychological abuse, or neglect because of: an ongoing problem concerning the physical or mental health of the person or couple commissioning the surrogacy, or of the surrogate and/or her partner (if any); or some other concern the doctor or counsellor has about the person or couple commissioning the surrogacy, or the surrogate and/or her partner (if any); the doctor or counsellor must seek advice about whether or not to proceed with a treatment procedure from a clinical ethics committee within a relevant hospital, which must include a child development expert, a psychologist or psychiatrist with expertise in the prediction of risk of harm to children and a doctor with experience in ART. Where a clinical ethics committee decides that a person or couple should not be able to commission a surrogacy, or the surrogate and her partner (if any) should not be able to participate in a surrogacy arrangement: the person concerned may apply to the Infertility Treatment Authority (ITA) review panel to have the decision reviewed; a clinic must not take any steps in relation to the surrogacy unless the committee's decision is reviewed by the ITA review panel and the panel decides there is no barrier to treatment, or decides that subject to compliance with certain conditions there is no barrier to treatment. A licensee should not assist in a surrogacy arrangement without the approval of the ITA review panel where the person or couple commissioning the surrogacy, or the surrogate and/or her partner (if any): has had charges proven against them in Victoria or elsewhere for a serious sexual offence; or has been declared a serious violent offender under the Crimes Act 1958 or any equivalent law of the Commonwealth or any place outside Victoria (whether or not in Australia); or has had a child protection order (but not an interim protection order) made for one or more children in their care under a child welfare law of Victoria or any equivalent law of the Commonwealth or any place outside Victoria (whether or not in Australia). FAR notes that these recommendations are exactly those recommended in Position Paper 1 with regard to access to ART, with the additional recommendation that they apply not only to the commissioning person/couple, but also to the surrogate (and her partner if she has one). FAR put a very strong position in response to the recommendations in Position Paper 1, while acknowledging that these are controversial and complex issues. Please refer to our response to Position Paper 1 (available on the Love Makes a Family website) for detail. Our position in summary was: We are very concerned about the whole approach of empowering clinics to exclude people from treatment and thus from parentage. Legitimating the idea that it is acceptable to exclude some people opens a wedge for others to be excluded from treatment by subsequent legislators with more discriminatory notions of what constitutes acceptable family. The Commissions argument, in Position Paper 1, that the use of taxpayers money for ART justifies such legislative approaches is not strong enough, in our view, to justify the issues and risks it raises. We are particularly concerned about exclusion criteria based on physical or mental health or other concerns, and less concerned about criteria based on criminal records and child protection history. Our concerns about physical or mental health arise from the damaging history of involuntary sterilization and ongoing removal of children from people with a disability. In addition we note that it was only relatively recently that homosexuality was actually separated from ideas of mental illness, and that such attitudes persist within medical and associated professions. Our concerns about other criteria arise particularly from the history of removal of children from, for example, Indigenous, poor and gay, lesbian and transsexual parents. Although it is the Commissions clear intention that discrimination be removed from both regulation and practice, we are very concerned about anecdotal evidence that in other jurisdictions (e.g. the UK and New Zealand) with non-discriminatory laws, individual doctors are excluding people from treatment based on homophobic personal beliefs about the best interests of children. FAR also notes that institutionalised homophobia is an ongoing concern for many in our communities, and offers as evidence for this within fertility services the continuing practice of allowing sperm donors to exclude lesbians and single women from being the anonymous recipients of their donations. We argue that no other form of institutionalised discrimination allowing donors to prevent their donations being used by Aboriginal people, or Muslims for example would be contemplated, let alone supported by clinics. We also note the very different approaches by different clinics and practitioners to offering services to lesbian women even under the current regime, for example that the new option for offering screened known donor sperm for self-insemination by lesbian women has only been taken up by one clinic. Despite our opposition to the overall approach proposed, FAR notes that some patients are already turned away from clinics, and appreciates the Commissions intention to ensure that such processes are transparent, and not based on discriminatory assumptions about parenting capacity of particular groups of people. We engage in detail with various aspects of the proposed processes in our response to Position Paper 1, for example arguing that the processes inappropriately place the burden of proof on the people seeking treatment. A person or couple who wish to commission a woman to carry a child on their behalf, must: be assessed as fit and proper people to enter into a surrogacy arrangement; receive counselling about the social and psychological implications of entering into a surrogacy arrangement; receive advice and information about the legal consequences of entering into a surrogacy arrangement. FAR accepts the Commissions argument that surrogacy is a special case, in particular that the experience for the surrogate mother of conceiving, carrying and birthing a child is very different to that of, for example, a sperm or even egg donor. We agree that this means that the rights and wellbeing of the surrogate mother must be a very high priority, particularly in view of the traumatic history of women who relinquished children for adoption in the past few decades. Therefore FAR strongly supports all recommendations to provide advice, support and counsellng to the surrogate mother listed in interim recommendation 8, as well as the process for transfer of legal parentage which enables the surrogate mother to refuse to relinquish if she cannot bring herself to do so. However, FAR does not accept that the different nature of the process of surrogacy means that there should be a raising of the bar in terms of requiring the commissioning person/couple to prove their parental abilities. We agree that the different nature of surrogacy, and the relationship (whether pre-existing or not) between the commissioning person/couple and the surrogate mother means that more counselling and legal advice may be required. We also accept that such counselling may involve a process of assessment of whether the commissioning person/couple adequately understands and is able to deal with the complex emotional, social, legal and psychological issues involved in surrogacy. However this should not be conflated with assessment of the commissioning person/couple as potential parents, for example by a process similar to that of a home study required for standard adoption. Just because adoption is seen as the most appropriate legal means of transferring parentage does not mean similar processes should apply. The commissioning person/couple is engaged in surrogacy because of the particular nature of their inability to conceive or bear a child, and should not have to prove their worth as a potential parent any more than any other person/couple engaged in ART (whether or not this includes the safeguards outlined in interim recommendations 4 to 6). FAR suggests that it would be more appropriate for the Commission to ensure that counselling offered to those considering engaging in surrogate is much more focused and helpful than fertility counselling currently offered by Victorian clinics. Please refer to our earlier to submissions, and to submissions from Bouverie Street Family Therapy for details. For example, counselors offering such services could be required to undergo training in a number of areas including: Family and adoption law, particularly as it pertains to surrogacy Child development, particularly as it affects children conceived via ART including surrogacy The particular needs and issues of gay and lesbian-parented families, and other families outside of the heterosexual nuclear family model Surrogacy, including various forms of ART involved. A woman intending to be a surrogate mother must: be assessed by an obstetrician specialising in ART and counsellor or psychologist as physically and mentally capable of acting as a surrogate; consent to all aspects of the arrangement, including the use of ART; have already experienced pregnancy and childbirth; receive counselling about the social and psychological implications of entering into a surrogacy arrangement; receive advice and information about the legal consequences of entering into a surrogacy arrangement. FAR agrees with interim recommendation 8, and suggests that counselling (to be offered by counselors with training and expertise in the areas listed above) may be useful at a number of points in the surrogacy process, including after relinquishment. However we are wondering why it is absolutely necessary to restrict the ability of women who do wish to become a surrogate to only those women who have already experienced pregnancy and childbirth. In some instances a woman who has not wish to be a parent may instead wish to be a surrogate for a close friend or family member. In such a circumstance, and given the surrogacy arrangement can only be altruistic, and given the fact that all parties must consent and attend the requisite counselling, FAR questions the need for this particular requirement. PAYMENT Section 59 of the Infertility Treatment Act 1995 should be amended to clarify that: a person must not receive any material benefit or advantage from a surrogacy agreement or arrangement to act as a surrogate mother, other than payment of the surrogate's reasonable medical and associated expenses; and payment of any loss of earnings incurred by the surrogate should not be permitted. FAR argues that within altruistic surrogacy there should be some capacity for payment of loss of earnings incurred by the surrogate, and that this should be a matter for discussion and agreement between the commissioning person/couple and the surrogate mother. Depending on the process of conception (e.g. IVF), and the progression and outcomes of the pregnancy and birth, the surrogate mother may be required to be away from paid work for some months. It seems most unfair that there should be no option for compensation for such costs. FAR suggests that a formula for calculating appropriate (and perhaps maximum) compensation based on previous average earnings might be provided by the Commission. FAR suggests a principle that the surrogate should incur neither any material advantage nor disadvantage by acting as a surrogate. PARENTAGE The Adoption Act 1984 should be amended to permit an adoption order to be made in favour of couple who have commissioned a surrogacy arrangement, subject to the following conditions: the application for the order should be made within six months of the birth of the child; the child's home should be with the commissioning couple at the time the application is made; the commissioning couple should have met the relevant eligibility criteria; the court should be satisfied that the surrogate and/or her partner (if any) has not received any material advantage for her role in the arrangement; the court should be satisfied that both members of the commissioning couple, and the surrogate and her partner (if any) agree to the making of the order. As noted, FAR has concerns about a number of the above conditions, including the relevant eligibility criteria of the commissioning (person/)couple, and the definition of any material advantage. Apart from these reservations, FAR supports interim recommendation 10, including adoption as the most appropriate legal means of transferring parentage, and the capacity of the surrogate mother (and her partner if she has one) to refuse to relinquish legal parentage if they cannot bring themselves to do so. As noted by the Commission, the use of adoption as the legal means of recognizing the commissioning person/couple will require some adaptation of the adoption process, including the widening of the criteria to include same-sex couples, and of the capacity for known child adoption to include children other than relatives. In relation to the statement the application for the order should be made within six months of the birth of the child FAR believes that leaving the final Adoption Act process up to 6 months after the birth will only going to place unnecessary strain upon the commissioning parents who may live under a cloud of fear that the child may be taken away at any time. This is not in the child's best interests. Instead FAR would support a process that occurred within a reasonable time period after the birth for example one month. ACCESS TO INFORMATION The central register maintained under the Infertility Treatment Act 1995 should be expanded to allow identifying information about the surrogate to be registered and released to the child in the same way as information about donors is registered and released. FAR supports the intention of Interim Recommendation 11. However FAR notes that, as suggested in an earlier recommendation, such information would be more appropriately stored by a special section within the Victorian Registry of Births, Deaths and Marriages, with all the appropriate confidentiality arrangements. The commissioning person or couple should be counselled about the importance of informing children of their genetic origins and circumstances of their birth. They should be provided with ongoing counselling and support to enable them to inform children about their origins. FAR supports Interim Recommendation 12. It would seem from the research evidence and the experience of children conceived via ART (and adopted) that the main harm to children regarding their origins is due to attitudes of shame and secrecy. FAR notes that gay and lesbian parents, by the very nature of their parenting arrangements, are much more inclined to be (and indeed have little choice about being) open from the beginning of their childrens lives about the nature of their origins. Response to key questions Should there be a requirement that the eggs of the surrogate not be used in the conception of the child? No. Both gestational ad partial surrogacy should be included in the regulatory framework. There should be the option for eggs of the surrogate to be used in conception o the child. Should there be a requirement that the gametes of at least one of the commissioning couple must be used in the conception of the child. No as this would discriminate against single people or couples who because of their gender of infertility issues do not have gametes to donate. Should a woman acting as a surrogate be over 25 years of age? No. FAR believes that a womans maturity and ability to cope with being a surrogate should be assessed on an individual basis, in line with the thorough counseling procedures as outline earlier in this response.     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