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Stephen 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:

• traditional surrogacy and gestational surrogacy would be allowed
• altruistic surrogacy would be allowed
• surrogacy agreements would not be enforceable
• there would be a transfer of legal parentage
• resident parents must reside in Queensland
• commercial surrogacy would remain a criminal offence- both in Queensland and by those ordinarily resident in Queensland throughout the world.

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
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?
No. There would need to be an adoption. De facto couples, including same sex couples and single people miss out.
Are surrogacy agreements binding?
Unlikely.
Who is covered?
Everyone, but: married couples, de facto and same sex couples and singles. There are restrictions about the change of parentage. Only married couples, or those in Aboriginal traditional marriages can obtain an adoption order.

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]

Stephen 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]

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.

Read more…

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."

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.

Read more…

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]

Preposterous demand for police checks has been met by silence.

A NEW era in Victoria’s assisted fertility legislation is about to dawn. From January 1, single Victorian women and lesbian couples will be able to access IVF in their home state rather than having to travel north for treatment.

The Assisted Reproductive Treatment (ART) Bill, which will also allow male gay couples access to IVF by surrogates, was passed in December last year, and arrived on the back of recommendations made by the Victorian Law Reform Commission to bring the state’s assisted reproductive treatment regulation into line with NSW, Queensland, Tasmania, Western Australia and the ACT.

For those it assists in becoming parents there’s no denying the act’s silver lining. It has the potential, as researchers Giuliana Fuscaldo and Sarah Russell argued last year, to legitimise "the idea that biology alone does not define parenthood".

Now for the dark cloud. The act also requires all Victorians jumping on to the IVF carousel to undergo police checks and child protection order checks. As Dr Lyndon Hale, director of Melbourne IVF, told the ABC recently: "The argument forwarded by the Government is that this is Government funds that are being used to help these people get pregnant and therefore they require extra checking."

How is it that the colour of money can make even the most complex of moral issues suddenly seem so black and white?

Read more…

TIMING is crucial when it comes to artificial insemination – at least as far as family law is concerned.

The issue was highlighted when an estranged lesbian couple went to the Federal Magistrates Court in a dispute over parenting orders relating to a three-year-old girl.

The women – given the court-ordered pseudonyms of Ms Aldridge and Ms Keaton – were living together when Ms Aldridge gave birth to the girl in 2006.

They had begun an intimate relationship in 2001 and three years later started attending a fertility clinic together. Before the child was conceived by artificial insemination with donated sperm, Ms Keaton signed consent forms for Ms Aldridge to undergo the procedure. Ms Keaton stayed with her in hospital after the baby’s birth and they shared her home in Sydney’s inner west for nine months afterwards. But after arguments about parenting, Ms Aldridge moved out with the child late in 2006.

Ms Keaton sought court orders that she be declared a parent of the child and given equal shared parental responsibility for her.

The court found in February that she was not a parent as defined in the relevant legislation, which hinged on the timing of conception. To qualify under the Family Law Act, Ms Keaton had to be the mother’s de facto partner at the time of the artificial conception, and the court heard the women only moved in together the month before the child’s birth.

The Chief Federal Magistrate, John Pascoe, found Ms Keaton was not the mother’s de facto partner at the key time. However, he found she was concerned with the girl’s care, welfare and development. He ordered Ms Aldridge have sole parental responsibility for the girl but that she also spend time with Ms Keaton.

Ms Aldridge appealed to the full court of the Family Court, arguing the orders were unnecessary because she was the child’s only parent.

The appeal was dismissed last week. The full court found that the original decision recognised Ms Keaton played ”an important role, akin to a parent, in the child’s life for a significant period of months after her birth”. The three appeal judges, including the Chief Justice, Diana Bryant, were satisfied the child’s best interests had been taken into account.

[Source: Original Article]

The Australian Family Association (AFA) says Queensland government plans to allow gay couples to access altruistic surrogacy is not supported by the wider community.

Last week the State Government introduced the legislation which is expected to be debated next year.

A Galaxy Poll commissioned by the association reportedly indicates nine out of ten people believe children should be raised by a mother and father.

AFA Queensland Branch spokesman Michael Ord says traditional family unit should be preserved.

"The problem is that children have the best opportunities in life with a mother and a father," he said.

"Same sex couples can’t naturally have children … that relationship is not a natural relationship in the sense of being able to bring children into life in a natural way and that’s all about self-interest really and its not in the best interest of children to be in that situation."

The State Government has introduced legislation to legalise altruistic surrogacy.

The Opposition has introduced its own bill, but it outlaws surrogacy for homosexual couples.

Parliament has risen for the year and the bill won’t be debated until next year.

Attorney-General Cameron Dick has told Parliament commercial surrogacy will remain a criminal offence.

[Source: Original Article]

Tasmania’s Legislative Council has voted unanimously to make the legal recognition of lesbian co-mothers retrospective to 2003.

The vote followed the unanimous acceptance to legally recognise two mothers on a birth certificate.

The law was originally rejected in 2003 when gay and lesbian couples were first recognised in Tasmanian law.

Rodney Croome from the Tasmanian Gay and Lesbian Rights Group said it is an important step forward.

"It means those children will now have the benefits which include of course greater legal, emotional and financial security of having two legal parents, both of them mothers, rather than just one legal parent, that has been the case up until now which of course has been their biological mother."

Windermere MLC Ivan Dean said not only would the law recognise parents who are supporting children without legal obligation, but it would also streamline the adoption process.

"Rather than go through the costly process, the drawn-out process of applying for adoption and doing it that way, and going through the Family Court, they will now be able to make the application to the registrar and if they can satisfy the register of their significant relationship, then it will be a fairly easy process for them to be included," he said

[Source: Original Article]

The results are in from the Gay Census. So far we’ve looked at gay marriage, sex and drugs. This week we’re taking a look at the issues surrounding gay parenting and surrogacy. How many of us already have children, and how many of us are keen to take the plunge into parenthood?

The survey found that approximately a third of us would one day like to have children. 28% of gay male respondents want kids, 1% already have kids and wanted more. Unsurprisingly, lesbians were more inclined to want children and were also more likely to already have them. 40% of women wanted kids and 3% of those already had them and wanted more. It’s a positive and promising sign according to Rodney Chaing-Cruise, co-moderator of Gay Dads Australia.

“The statistics are quite interesting and illustrate that the desire for gays and lesbians to become parents is very strong. I would suggest at least amongst gay men it’s becoming stronger, particularly as the options of surrogacy are becoming more widely known,” he said.

Discussion of the issues surrounding parenting have become of greater interest to the community, and are starting to become more reflected in aspects of our culture and activities.

“Attitudes towards parenting and children are changing – slowly – within the LGBTI community too,” says Felicity Marlowe from the Rainbow Families Council. “For example the Melbourne Queer Film Festival held a kids movie session at this year’s film festival for the first time.”

When it comes to methods of creating a family, surrogacy, adoption and donor / insemination were the most preferred options. The gay men surveyed were pretty evenly split between adoption and surrogacy as options for how they would create their families. 46% opted for surrogacy as the chosen method, while 48% preferred adoption.

Lesbians respondents preferred the donor / insemination option overall – 62% would choose a donor to help facilitate creating their children, rather than going down the adoption path (25%).

Despite its popularity as an option, the unfortunate reality is that adoption is simply still not really an option for most gays and lesbians in Australia.

“In relation to the gay parenting aspects it is true that surrogacy done in the US, Canada and India is providing gay men with the opportunities to be dads and fulfill their desire to be parents. It’s a desire that straight people have as well. The adoption statistics are very interesting and I suspect they are merely a reflection of ‘we would do it if we were allowed’,” said Chiang-Cruise.

Adoption is essentially illegal for gay and lesbians in all states except WA. ACT and Tasmania allow for “second parent” or “known parent” adoption. The lack of available children for adoption in Australia is a well documented problem. This is on top of the fact that gays and lesbians generally don’t have a legal right (in most states) to access adoption. International adoption is also banned for all gay and lesbian couples from Australia.

So who do we most want to help facilitate the process of creating our families? The clear majority of those surveyed (66% of gay males, 63% of lesbians) said they would want the donor / surrogate to be a good friend, with a slight preference for a queer friend over a straight one. The second most popular option was for an uninvolved donor or surrogate, paid or unpaid, with a 24% of gay men favouring that option, and 27% of lesbians.

The above figures appear indicate a preference for an ongoing relationship with donors, someone who will assist in creating a family and will continue to have an involvement in the child and family’s life. However, according to Lee Matthews, founder of the Gay Dads Australia network, for those creating their family the most important focus is the welfare of the child and treating both parents as equal, rather than focusing on who is or isn’t involved biologically.

“All the dads we know rarely acknowledge whose sperm was used, and make sure that everyone treats both guys within a relationship as equal parents,” said Matthews.

“What’s paramount is that their children see their parents as equal, and also that those around them – extended family, friends, school teachers – do too. Genetics might be topical at time of conception but social circumstance wins out as soon as your kids are part of your life.”

Both Marlowe and Chaing-Cruise agree with Matthews.

As a result of strong community campaigning from organisations such as Rainbow Families Council and Love Makes A Family, parenting options are slowly becoming more available and GLBTI families are more recognised – so is greater awareness of the complex issues surrounding parenting. Traditional terms such as father, mother, biological, natural and parent have radically different implications when used to describe roles within a GLBTI family context.

“Language is a fraught area of discussion as we are trying to create families that do not fit the words or terms the mainstream world uses to explain everyone’s roles/responsibilities with a family structure,” explains Marlowe.

“I think our LGBTI parenting community takes the use of language very seriously and thinks long and hard about what to call ourselves and what words to use to describe our families.”

[Link: Original Article]