On September 11th, a full bench of the Family Court in Australia handed down a devastating decision that will impact the lives of thousands of parents and children born via overseas commercial surrogacy. The decision has the effect that these children now are left in limbo without parental status under Australian law. Furthermore, there is also a strong chance that the decision could impact whether the Department of Immigration will recognise children born via overseas surrogacy arrangements as Australian citizens, thus, it has the potential to become a human rights issue.
Like many other families, my husband Dave and I, and our children Savannah and Adaline, are directly impacted by this heartbreaking decision.
Dave and I have been living in the United States for many years. We met in the U.S and married here. Being older when we married, we decided to start a family right away. However, after losing four babies; one at four months into my pregnancy, we were forced to seek the help of a fertility specialist. I undertook 3 rounds of IVF and had over 100 tests done before it was ultimately determined that I am unable to carry a child to term. I had no problems getting pregnant but my body could not sustain a pregnancy to term as it was discovered that I have two blood conditions. Unfortunately there was nothing that could be done to assist me to be able to carry. Our doctors therefore recommended that my husband and I undertake surrogacy to have our children as we were able to produce many strong, viable embryos.
After extensive research and interviews by both my husband and I and our medical team, in September 2016, we entered into a commercial surrogacy agreement with a surrogate in Texas. In November 2016, our embryos were transferred into our surrogate and by the end of November a viable pregnancy was confirmed: we were finally having our twin baby girls!
Despite a difficult journey (our babies were born at just 28 weeks and spent two and a half months in hospital), the arrival of our baby girls has absolutely changed our lives. Dave and I wanted nothing more than to be parents, to create our little family together and our surrogate was able to give us that gift. Savannah and Adaline are 100% biologically ours (they were conceived using my egg and Dave’s sperm) but in my view that should not matter and should be irrelevant to the discussion because families are made through love. People have babies naturally every day and are terrible parents and others adopt and are fantastic parents. Families certainly can be and are made every day in different ways.
We absolutely agree that surrogacy is a complex issue and like most things in life, there is always the potential for exploitation but adopting a head in the sand approach and refusing to adequately legislate not only ends up hurting couples like Dave and I but, more importantly, the children suffer as well and aren’t they the ones that we are ultimately trying to protect? The better and more appropriate way of dealing with the issue is to regulate it so that it can be undertaken by couples in a safe and appropriate manner.
Dave and I are now faced with an extremely troubling situation as prior to the full Family Court of Australia decision being handed down we had planned to move back to Australia with Savannah and Adaline next year. Dave and I have been living and working in the U.S. on E-3 work visas which are temporary non-immigrant visas. My visa expired in July but I have been on maternity leave since the girls were born and I am planning to return to Australia to apply for a new visa prior to my maternity leave period ending. Dave’s current visa expires next month and he too is returning to Australia to apply for a new visa next week. We have no guarantee; however, that our visa renewals will be approved which would mean that we no longer have the right to live and work in the United States. Even if we are granted a new visa, this will likely be the last one that we will be entitled to as they are only intended to be temporary in nature and it will only be granted for 2 more years.
As a result of the Family Court decision, which has the effect that we are not legally recognized as the parents of Savannah and Adaline, there is now a real possibility that our girls my not be granted Australian citizenship. As such, we will be faced with a situation where Dave and I no longer have the right to live and work in the United States and Savannah and Adaline cannot live in Australia. This decision; therefore, has severe and extremely detrimental implications for us and I have no doubt that we are not alone as it is estimated that about 250 babies a year are born overseas via surrogacy arrangements to Australian couples.
The full Family Court decision involved an Australian couple, known as “Mr and Mrs Bernieres” who travelled to “Country T” and entered a commercial arrangement with a surrogate mother. As a result, a baby girl was born - the product of Mr Bernieres’ sperm and an egg from a donor. The couple applied to the Family Court for a declaration that they were her legal parents. Three judges of the court ruled the couple were not her legal parents, despite Mr Bernieres being her biological father. This is because the commonwealth Family Law Act leaves it to state and territory legislation to determine the status of children born under surrogacy arrangements. Mr and Mrs Bernieres were not recognised as parents under the Victorian legislation because, like all states, it does not recognise children born via commercial surrogacy arrangements.
“The unfortunate result of that conclusion is that the parentage of the child here is in doubt ...” the judgment says. “There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the ‘legal parent’.” The three judges said it was not open to the court to fill the “legislative vacuum” that existed for children born via overseas commercial surrogacy arrangements; this needed to be fixed by legislation.
So, like many other families who will be impacted by this decision, whilst Dave, Savannah, Adaline and I await the government to address this issue, which may all come too late for us, what options are available to us? Well according to Barrister Robin Smith, who acted for Mr and Mrs Bernieres, the only option for them was to apply to adopt the child but as Mr Smith acknowledges, this would be a very difficult process and is perhaps even impossible in some cases. For Dave and I, we simply do not see how it would be possible for us to legally adopt children that are already legally ours in the U.S. To satisfy the Australian court we would have to enter into a legal adoption under U.S. law and as we are already legally the parents here it just isn’t possible.
Additionally, adoption in Australia is virtually impossible and overseas adoptions come with their own complications. Aside from being difficult and complicated there are also Australian immigration issues when attempting to obtain citizenship for overseas adopted children. As such, adoption is often not a viable option.
Dave and I want our children to be able to grow up in Australia around their extended family but to do that we need our children’s right to have us recognized as their legal parents honored. We did not set out to break Australian law. We complied with the laws of the country where we have been living. Like many families like us, surrogacy was certainly not the easy option. It was our last result. We wanted to be a family and we believe that we had the right to take measures to do so – measures that are accepted and legal in many other parts of the world like the United States.
We need urgent assistance and public attention on this issue so that families like ours might be able to call Australia home again.