Federal Judicial Scholarship

State of the Nation - Federal Circuit Court of Australia

Chief Federal Magistrate John Pascoe
16th National Australia Family Law Conference
Sydney, Australia
7-9 October 2014

Before we begin, I would like to acknowledge and pay respect to the traditional owners of the land on which we are gathered here today; the Gadigal people of the Eora Nation.

I do not intend to repeat the matters that the Chief Justice has already covered, however I do endorse Her Honour's comments. I also want to acknowledge and thank Richard Foster for his outstanding contribution to the Courts.

In starting, I want to make a few initial points about the recent work of the Federal Circuit Court of Australia.

Notice of risk initiative

The Federal Circuit Court has been considering the introduction of a new Notice of Risk form to replace the Form 4, so as to better identify a range of risks to children in parenting proceedings in the Court at the earliest possible time and to improve compliance with the legislative requirements.

A pilot program has been underway in South Australia since February 2013. The purpose of the pilot was to trial the operation of the Notice of Risk form and to compare it to the operation of the Form 4 in identifying matters in which there are alleged risks to children of the type referred to in ss.67Z and 67ZBA of the Family Law Act. The pilot required all parties in parenting proceedings to mandatorily file a Notice of Risk.

The Notice of Risk addresses the requirement imposed by section 69ZQ for the Court to ask each party particular questions concerning child abuse and family violence. It is also designed to identify other risks which do not fall within the ambit of any of the notification provisions but which, nevertheless, may be of relevance to the Court in protecting children from the risk of harm.

In drafting the proposed Notice of Risk the following factors were considered:

• The current Form 4 is not filed in all instances where risk allegations are made.  Judges often have to order parties to file the Form 4. Consequently, there is then a delay in the notification of risk to relevant child protection authorities. By requiring all parties to parenting applications to file a Notice of Risk, there is likely to be a greater compliance with legislative requirements and more timely notification to the relevant child protection authority.
• Family violence and child abuse understandably have a prominent place in the Act.  There are, however, other issues which can pose a serious risk to children.  These include mental illness of a parent, drug and alcohol abuse and serious parental incapacity.  The Notice of Risk seeks to identify a wider range of risks, such as those just mentioned, and will aid early and effective case management.
• The requirement for the filing of the Notice by all parties facilitates the collection of more accurate statistics about the number of parenting cases in which particular allegations are made.

The pilot has been very successful in providing much more accurate data. It is proposed that the Notice of Risk be progressively rolled out across Australia, starting with an official launch by the Attorney General in January next year.

Reconciliation Action Plan

The Federal Circuit Court Reconciliation Action Plan (RAP) was launched in March this year. Most Courts have long established protocols for working with Indigenous people. The Federal Circuit Court's RAP, however, was the first to be developed by an Australian court and was written in collaboration with Reconciliation Australia.

The RAP outlines real and practical measures to achieve reconciliation, build stronger relations with Aboriginal and Torres Strait Islander peoples and provide Aboriginal and Torres Strait Islander clients with better access to justice and the family law system through tailored services and procedures. It contains 13 specific practical measures that the Court will adopt across four focus areas, including:

• providing access to justice for Aboriginal and Torres Strait Islander peoples and providing opportunities for Aboriginal and Torres Strait Islander peoples to build relationships with Judges and court and registry staff.
• improving awareness within the Court by developing appropriate cultural competency training to better enhance our delivery of judicial services to Aboriginal and Torres Strait Islander people and establishing productive partnerships with appropriate Aboriginal and Torres Strait Islander agencies and elders.
• developing opportunities for members of the Aboriginal and Torres Strait Islander community to enhance their educational and career prospects, by offering placements and work experience opportunities for law students/graduates and establishing traineeships and work experience for other Aboriginal and Torres Strait Islander peoples.
• tracking progress and reporting on the Court's achievements and challenges to Reconciliation Australia and investigating other means to track progress on RAP objectives and report on what has been achieved.

Circuits

In the 2013–14 year, Judges of the Federal Circuit Court of Australia sat in 33 rural and regional locations as part of its extensive circuit program. It is estimated that the work undertaken in the rural and regional locations equates to between 16 and 20 per cent of the Court's Family Law workload. There is a significant demand for new and expanded circuits in regional areas.

The Court consults with legal practitioners to discuss issues about circuits. We are currently consulting with the Family Law Section about procedures for practitioners and litigants seeking to attend court by video or telephone link.

E-Filing is also used to assist parties by enabling them to file documents from rural and regional locations, as opposed to attending a registry or using standard post.

Productivity

The workload of the Federal Circuit Court continues to grow. Last financial year, a total of 92,022 matters were filed; 83,357 (which included divorce applications) were in the Court's Family Law jurisdiction, slightly more than the previous financial year.

In Family Law last financial year, there were 81,491 cases finalised, a slight decrease from the 83,480 of the previous year. In Family Law, the clearance rate was an admirable 98 percent. However in General Federal Law, the rate was 87 percent. This is a direct result of a 24 percent year-on-year rise in filings in General Federal Law, indicating a 61 percent year-on-year increase of filings in the Migration jurisdiction.

These statistics reflect the strain on the Court in dealing with its ever-increasing workload. It is critical that the Court has the resources, most importantly additional Judges, to respond to its increasing workload, not just in the cities but also in rural and regional Australia.

I note that the Court is now facing a significant number of retirements as Judge's reach 70 years of age. This reality imposes further constraints on already-full workloads as Judges take time before their retirement date to clear outstanding judgments. Moreover, there may be delays in new Judges being appointed and able to take on a full work load.

Surrogacy

Many of you will have heard me say that Family Law is inextricably linked to human rights. In the case of the Federal Circuit Court, it is interesting that the Court has specific jurisdiction in both Family Law and Human Rights.

In this regard, the sharp rise in the number of Australians entering into International Commercial Surrogacy ("ICS") arrangements raises issues in both Family Law and the human rights of those affected by such arrangements, especially vulnerable women and children.

The commodification of new-born children is not new.

I first became interested in issues related to the trafficking and sale of newly born children in the days when technology was such that new-borns were packed into boxes and bags and transported for sale.

In 2005, the United Nations Special Rapporteur on the Sale of Children, spoke of one such case when she reported as follows;

"In September 2003, a fishing-boat from the Indonesian island of Tanjung Balai Karimun was allegedly intercepted heading towards Malaysia. According to information received, eight babies were found on this boat, packed in Styrofoam fish boxes, punctured in order to allow the babies to breathe."

Here is a box of similar size to those in which these babies were transported.

Since 2005, further instances of babies being treated as chattels for the purposes of transportation and trafficking have come to light. One such example was the discovery of babies, packed in vegetable crates, for the purpose of trafficking from Vietnam to families in China. In these horrendous conditions, it is hardly surprising that some babies perished on the journey, 'euphemistically' referred to in the trade as "spoilage."

Later, traffickers became more sophisticated – 'exporting' pregnant women across international borders to give birth close to the market where the baby was to be sold. One of the first documented case studies occurred in 2004 when Bulgarian, Italian, and Greek police forces successfully broke up two baby-selling rings, which engaged in the forced, and in some instances voluntary, transportation of pregnant Bulgarian women into Italy and Greece on tourist visas. The women gave birth to their respective children in local hospitals, and with the collusion of local medical staff and doctors, the new-borns were registered to the purchasers with the birth-mother sent back to Bulgaria.

There are similar examples from a number of other countries, including South East Asian countries. Although there is anecdotal evidence to suggest this style of trade is being displaced by surrogacy it appears to be still continuing. A 2009 US State Department report on Human Trafficking indicates that the trafficking of pregnant women and forcing them to sell their children abroad was still a problem, particularly as the women were free to travel and were unable to be stopped by border police in neighbouring countries. The motives of the mother for selling the child were usually poverty, family coercion, and the belief, which may or may not be justified, that the child may have a better life.

With technological progress, in vitro fertilisation ("IVF") offered the potential for there to be a genetic link between the baby and the intended parents. IVF became more common and with it the technology was quickly abused, as graphically demonstrated in the Baby 101 case in 2011. In this case, an IVF clinic in Thailand called Baby 101 trafficked at least 13 Vietnamese women to Thailand, where they were imprisoned, and impregnated with genetic material supplied by commissioning parents. In some cases, the method of impregnation was rape by the would-be father. The mothers were only to be released after the children were born and delivered to the purchasers primarily from Taiwan.

Australians are notably absent from the trafficking and the commodification of children up to this point. This is not the case when we discuss ICS. However, the potential for the abuse of the human rights of the child and the surrogate mother are no different. In fact, ICS is the new front line in the trafficking and commodification of women and new born children.

Over the past few years Australia has experienced a sharp rise in parents commissioning ICS arrangements. In India alone, the number of Australian couples seeking surrogate mothers has risen by over 300 per cent in the past five years. This growth has occurred in the context of widespread media reporting that focused on the personal narratives of commissioning parents, and in spite of Australian laws outlawing the practice of ICS.

However, two narratives that have, until recently, overwhelmingly been ignored in the public domain are those of the surrogate mother and surrogate child. The quiet advancement in reproductive technology and increased accessibility of overseas fertility clinics poses serious challenges to these two traditionally vulnerable groups. In a practice sometimes referred to as the 'baby production "industry"' commissioning couples often give minimal thought to the human rights of the children and women involved. In the unregulated and largely ignored international sphere of surrogacy the potential for human rights violations are as great if not greater than those risks which precipitated the Hague Convention on international adoptions.

The recent conviction of an Australian-American couple in the United States, Peter Truong and Mark Newton, is a stark reminder of the absolute vulnerability of women and children in the international baby market. In 2005, this couple purchased a new-born boy from his Russian mother for $US8,000, after several failed attempts at ICS. The baby boy, handed over immediately after birth, was subjected to what the US Attorney's Office described as "some of the most heinous acts of exploitation that this Office has ever seen."

In a sentencing memorandum provided to the United States District Court, the US Attorney summarised the child's treatment as follows:

"It is difficult to overstate the depravity of the Defendant's conduct in this matter. The details of the Defendant's victimization of the boy quite simply shock the conscience, and the pattern of psychological, physical and emotional abuse inflicted by the Defendant on the boy amounts to an unimaginable twisting of every principle of parenthood and notion of a duty to protect children. This Defendant bought a child, falsified the circumstances of his birth and citizenship, sexually abused him to such a degree and so early in his life that by 22 months old the child's sexual awareness as depicted on video rivals that of an adult. The Defendant meticulously trained the boy to hide the truth from any who may inquire, and then transported him around the world for the purpose of his engaging in sex with more than half a dozen other men, all before his sixth birthday.

Although this horrific set of facts relates to a purchased baby, a similar fate would no doubt have awaited the surrogate child had the couple been successful in any of their prior attempts. Further illustration of the dangers for the child can be seen in the Baby Gammy case, with which you are all familiar. The Pennsylvanian case of Huddleston, further highlights this risk. In Huddleston, a young man commissioned a child via ICS as the sole intended parent. The surrogate infant died, six weeks after being delivered to the commissioning father, as a result of severe physical abuse.

In the absence of any regulation or oversight at the international level, there are no protections offered to women and children on whose lives surrogacy arrangements have an enduring impact. It is imperative that more work is to be done at both the international and domestic level to ensure the rights of women and children are protected.

What is Surrogacy?

The concept of surrogacy is an ancient one, with references to the practice dating back to the biblical times of Abraham and his female servant Hagar. However, more recently, medical advancements have somewhat complicated the more archaic practices.

A surrogacy arrangement can either be made on a commercial basis, where the surrogate mother is paid a fee, above and beyond that of reimbursement, for bearing the child; or a non-commercial basis, where no payment, other than medical expenses, is made. The latter arrangement is sometime referred to as 'altruistic surrogacy' and is permitted by legislation, in varying degrees, in all Australian states and territories other than the Northern Territory. Commercial surrogacy arrangements with in Australia are prohibited, criminalised, or simply not acknowledged. Commercial surrogacy entered into overseas by Australians is criminal in New South Wales, Queensland, and the ACT and prohibited in all other states.

Globalisation of Commercial Surrogacy

The general prohibition on domestic commercial surrogacy arrangements in Australia has led large numbers of Australian commissioning couples to seek to enter into surrogacy arrangements abroad. Many developing countries, such as Mexico and Ukraine, do no regulate surrogacy agreements, leaving such arrangements to be determined by the free market. The market determines everything from the cost to the conditions, which are all encapsulated in a contract between the commissioning couple and the surrogate mother. As Ryan J recently commented in the case of Mason & Mason this creates a "troubling" environment for vulnerable women who have little bargaining power. In Mason an illiterate mother signed an agreement purporting to limit her ability to manager her health during the pregnancy and make decisions about the delivery of the baby. Effectively her body was at the behest of the commissioning couple.

It also creates an unwholesome race to the bottom, of "rampant forum shopping by couples seeking the best surrogacy prices and conditions." In India, the result of this competition has precipitated the expansion of over 600 surrogacy treatment clinics assisting 60,000 commissioning parents a year. One participant of this unbridled trade in procreation described the process as 'like going to the supermarket to pick up your baby.'

International law also offers little protection to vulnerable surrogate mothers and their children. The Permanent Bureau to the Hague Conference on Private International Law has drawn attention to the inability of current anti-human trafficking conventions to deal with ICS. ICS therefore remains in a situation similar to that of international adoptions prior to the 1993 Hague Adoption Convention. Essentially, having enough money to pay for ICS is the only gatekeeper directly regulating the market at the international level.

Fait Accompli upon Return

Further problems prevail upon the commissioning parents returning to Australia with the child, presenting the Family Law Courts with a legal and ethical conundrum. Under most state and territory legislation, a commercial surrogacy arrangement remains illegal, regardless of where it occurred. However, the Family Law Courts also operate within the terms of the Family Law Act 1975 (Cth) and its overriding purpose of acting in the best interests of the child. This leaves the Courts in a difficult situation where the surrogate mother has relinquished her responsibilities of parentage over the child and the commissioning couple have brought the child back to Australia. In such circumstances it is hard for the Courts to determine that it is not in that child's best interests to remain with the commissioning parents. As Ryan J commented in Ellison & Karnchanit; "it's probably too late to ask whether – or to inquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them."

This creates a tension between two significant policy goals. On the one hand there is the federal policy goal of protecting the best interests of children. However, on the other hand there is the state and territory policy goal of protecting women and children from 'commodification' and exploitation.

Again, this disharmony between state and federal objectives does little to protect overseas surrogate mothers, or indeed those children who are not brought before the Courts. Despite the disharmony and evident failure prohibitive commercial surrogacy laws, there seems little legislative interest in remedying the situation. Millbank notes that to date only one MP has questioned whether it is in the best interests of children to have their parents incarcerated as a result of the circumstances of their conception. Another question that might be asked is what is the point of having criminal sanctions against a practice if they are not intended to be enforced?

Ethical Considerations

The Australian media has, until recently, largely downplayed the risks involved in ICS arrangements or disguised it in a positive narrative framework. Commonly, such narrative frameworks take the form of a commissioning couple having to mortgage their house to obtain a child while the surrogate mother is provided with funds to support her own family. However, the growing body of evidence from the international arena suggests that this is not the reality for many surrogate mothers.

In 2009 the Standing Council of Attorneys-General raised concerns with the practice of unregulated commercial surrogacy, noting it "risks the exploitation of poor families for the benefit of rich ones." This risk becomes especially relevant where wealthier commissioning families rely on a 'middleman' to make the necessary arrangements.

Often ICS arrangements are made through the use of an agent or middleman, who acts as the intermediary between the commissioning parents and surrogate mother. It is not uncommon for some commissioning parents to never meet the surrogate mother. This additional degree of detachment, effectively removes one of the few protections for surrogate mothers, vulnerable to the unscrupulous and covert practices of some middlemen. As some critics have observed 'a climate where infertile patients are emotionally vulnerable and highly motivated to achieve "success" at any cost it provides a ground ripe for unethical practices.'

Unethical Practices

The unscrupulous practices of many surrogate agents, driven by the desire for greater profits, are just beginning to be uncovered. Unethical practices uncovered include a lack of informed consent, a distortion of the risks faced by women and the baby, inflation of success rates, and the prescription of unnecessary treatments. This last practice can on occasion have dire consequences for the surrogate mother, especially where surrogacy clinics require unnecessary caesarean births. The implantation of multiple embryos and forced abortions is also a hazard.

Caesarean births are often preferred over natural birth by commissioning parents, as they get to choose the birthday of the child and by agents as they are able to inflate prices. However, little thought or information is given to the surrogate mother about the potential consequences of such procedures. Nor is support offered to the surrogate mother after the birth in many developing work surrogacy clinics. In one tragic Indian case, reported in 2010, a surrogate mother was thrown out of a surrogacy clinic immediately after a successful caesarean birth. This mother was suffering from post-birth complications and was instructed by the managing surrogacy physician to find care in a public hospital. The mother died before her husband could transport her to the nearest public hospital.

The Risk of Human Trafficking

Often the practices of middlemen resemble those used by sex traffickers. Agents looking for potential surrogate mothers prey on unsophisticated and often illiterate rural women who they then compel to move to major cities. One surrogate mother recalled her recruitment process in the following terms; "Madam told me I should become a surrogate and if I do, all my worries will go away." This woman was also told to "think of the pregnancy as 'someone's child comes to stay at your place for nine months.'"

In one critic's view, this process should more accurately be called 'reproductive trafficking' because:

"[I]t creates a national and international traffic in women in which women become moveable property, objects of reproductive exchange, and brokered by go-betweens mainly serving the buyer."

The notorious Baby 101 case, where Vietnamese women were trafficked an forcefully impregnated, is a telling example of how such a view is by no means fanciful or exaggerated.

Issues of Self-Determination

Where women are not physically trafficking, the marginalised nature of many surrogate mothers raises serious questions about whether socio-economic or familial coercion was a causative factor in the final decision. Putting the choice bluntly:

The choice between 9 months of being well-fed and medically monitored as a surrogate (even if behind lock and key) is far superior to being forced into prostitution internally or trafficked for sex in other nations…where women face brutal conditions of sex work/slavery.

A further consideration is that of the social stigmatisation that many surrogate mothers experience in countries such as India as reaction to their work. There are also no guarantees that the surrogate mother will ever be adequately paid. All too often the money is kept by the broker or by a husband or other family member.

Finally there remains the question of what rights a surrogate mother has if she decides she wishes to keep the baby post-contract. It is unlikely that a surrogate mother in the circumstances described above would be able to retain the surrogate baby where they subsequently change their mind. The illiterate and poor surrogate mothers used in ICS arrangements are far removed from that of the educated US surrogate mother in the famous Baby M case. This places the surrogate mother at considerable risk of psychological harm resulting from the loss of the baby, especially in cases where traditional surrogacy is used, where the mother is likely to from a closer bond.

It is surely wrong that those from wealthy countries should be involved in exploiting the vulnerability of women in developing countries.

The Rights of the Child

ICS arrangements raise several concerns about the rights and interests of the children involved. From the beginning the child's future is often uncertain. Prior to birth, the child's legal status remains the subject of legal debate, and vulnerable to usurpation of others. Post-birth, the questions surrounding the child's parentage and nationality remain.

Often commissioning parents may not be recorded on the birth certificate of the surrogate child. This can create difficulties in obtaining passports and travel documents for the child, to enable him or her to accompany the commissioning parents home. If parentage and nationality cannot be established there is the potential that the child may be left 'marooned, stateless and parentless.' This is exactly what has happened in a case between India and Norway where neither state recognises the twins born out of an ICS arrangement. At the time of writing the case remains unresolved and the twins remain stateless in India.

Such a situation is in direct conflict with the child's right to acquire nationality from birth guaranteed under Art.7(1) of the UN Convention on the Rights of the Child.

The anonymity of genetic material donors and practical difficulties with locating a surrogate mother also mean that it is not possible for many surrogate children to ever learn their genetic heritage. As Brennan and McHugh JJ observed in G v H; "finding that a particular man is the child's father might be of the greatest significance to the child in establishing his or her lifetime identity." No doubt the same could be said for the child knowing his or her surrogate mother. Again denying the child the ability to know their genetic origins is in conflict with Arts 8(1) and 8(2) of the Convention, leaving the child in a state known as 'genetic bewilderment'.

In Australia, there are no laws that recognise parentage under ICS arrangements. Therefore commissioning parents are required to seek 'parenting' orders from the Family Law Courts. Apart from the conflicting policy goals mentioned above, parenting orders also fall short of a commissioning parent's ultimate goal as they are not able to legally recognising the parentage status of the commissioning parents. They merely designate parental responsibility.  

Devaluation and Commodification of the Child

Commercial surrogacy in any form, but especially that of the unregulated international market, further raises concerns about the devaluation of a child's inherent worth. In the current global market approach to ICS arrangements the child's inherent worth may be devalued, being understood as mere commodities that can be bought and sold to the highest bidder. One critic explains that in the process, the child:

"[C]an be seen as the product of an expensive business transaction. Technically, the commissioning parents may be buying gestational services but they feel they are buying a baby."

This process wholly undermines the view of a child as a rights-bearing person. Once this view is undermined many other potential abuses relating to eugenics or the so-called 'designer baby' phenomenon arise. Under these auspices there is the potential for legitimising sex-discrimination practices or the 'saviour sibling' practice where a surrogate child is commissioned, so that their tissue can be used to treat a pre-existing sibling's illness.

In the unregulated ICS market, there also remains the more sinister risk of children being 'commissioned' for trafficking or abuse, previously highlighted.

Concluding Remarks

Australia is emerging as one of the highest per capita users of commercial surrogacy. Although this has precipitated some debate, discussion to date has largely neglected the rights and interests of children and surrogate mothers. In this address I have briefly canvased a few of the more serious questions and concerns arising out of ICS arrangements that require addressing. Put bluntly the question that must be answered is: 'are babies commodities to be planted and harvested?' This is a question that must be addressed by Parliament with reference to the empirical research and considered free from popular or emotive misunderstandings. It must also be recognised that the concept of 'family' has changed from what may have been accepted 20 years ago. Now, there are many blended families, single and same-sex parent families, and situations where groups of unrelated people support each other. At the heart of the concept of family, however, is mutual love and support.

The present prevalence of ICS and the paramount concern for a child's best interests suggest that it may be futile to continue a prohibition on commercial surrogacy. Rather, the practice should be thoroughly reviewed, with analysis focusing on the rights of children and the surrogate mothers involved.

Governments should recognise their duty to protect children, women and families from opportunistic and reckless practitioners who primarily seek to profit from the existing climate of disparate desire and no regulation. It should not be left to the Family courts and consular officials to deal with a 'fait accompli' which leaves them feeling responsible for less than satisfactory results.

We should also recognise that human rights are universal. There is no acceptable reason to treat women in overseas countries differently to those in Australia. If we regard Australian engaging in ICS in other countries as OK, why is it not OK here? Why do we have laws that are not enforced?

I would like to leave you with the following comment made by a now-adult surrogate child, as it is a pertinent reminder of the real human lives involved in surrogacy arrangements:

"Because somewhere between [the] narcissistic, selfish or desperate need for a child and the desire to make a buck, everyone else's needs and wants are put before the kids' needs. We, the children of surrogacy, become lost. That is the real tragedy."

Australia cannot continue to ignore the reality of what is happening. In my view, we need a proper national inquiry so that all Australians have an opportunity to consider the issues raised by commercial surrogacy and how it may best be used whilst protecting the rights and interests of vulnerable women and children. This is an issue of concern for all of us.

Footnotes