Family_Law

FAMILY LAW Same sex couples & Surrogacy YEAR 12 Legal Studies Surrogacy and same sex couples are an issue in our current society. Though some of the people from Australia’s community don’t really pay attention to these matters, the people involved do and they fight the government regally to try and make these matters legal. IVF, Artificial insemination, and genetic manipulation are three ways to have a baby if the natural way is not available. IVF (In-Vitro Fertilisation) – Where fertilisation takes place outside the uterus and the embryo is manually placed in the surrogate mother’s uterus. IVF Technology has progressed over the years making it more popular for couples who cannot have kids. IVF may be used to overcome female infertility in the woman due to problems of the fallopian tube, making fertilisation in vivo difficult. It may also assist in male infertility, where there is defect sperm quality, and in such cases ICSI may be used, where a sperm cell is injected directly into the egg cell. This is used when sperm have difficulty penetrating the egg, and in these cases the partner's or a donor's sperm may be used. ICSI is also used when sperm numbers are very low. ICSI results in success rates equal to those of IVF. IVF technology has reached to the stage where you can pick the gender of your baby, this is done when X and Y chromosome are separated and injected into the egg separately. If they choose to have a girl they would inject the X chromosome and if a boy they inject The Y Chromosome. Australian law has banned this from happening within its states and territories since 2004. And is against the law to do it within the country, However many other countries allow this such as the US, UK etc and many people go out of their way to go overseas to do this process Though this may have been a Great discovery the ethical side is to be thought of before doing it. This is breaking the balance chain. Babies were meant to be a surprise gender but now you can select the gender you want. Many people will choose a particular Gender and with up to date Statistics more than 60% people choose the girl instead of the boy. Artificial Insemination – Where the sperm is donated by the male and is introduced into the surrogated mother’s uterus. Australia allows this process and has no intention of banning it. For people who do not want the IVF treatment and the man can’t provide sperm this is a process designed to use donated sperm from someone else. Many problems and legal issues have arisen using this process. The donator (Biological father) sometimes wants to find out who his son/daughter is; they also try and fight to see them on a regular basis. And there are the donators who just live on with their lives. But also you have the kid who grows up to a mature age and sometimes wants to meet their biological father just like 20 year old (Jan, 04) Geraldine Hewitt who has been on the hunt since she was only 14. She hasn’t got much to go on with. But she knows he’s blond, blue eyed, 5ft 8in tall (170cm), with fair skin and average build with the code name J-A-X. (Unknown paper, Written by Zoe Taylor, Medical reporter) Geraldine Hewitt is a good example of all the young adults who are looking for their father. Genetic manipulation – donated genetic material to alter a foetus in uterus. Or sharing a gene. The Australian Government has banned this all together under the prohibited Human cloning Act. In 2005 the Legislation Review Committee conducted an independent review of the provisions included in the Act in light of scientific progress and changes in community Understanding and standards since 2002. In this report, the committee recommends that The implantation of an embryo carrying heritable alterations to its genome should remain Prohibited. Surrogacy is popular all over the world, and many couples who are unable to have kids do this. Surrogacy laws in Australia are always changing, laws currently makes surrogacy illegal if the process is being done in a oversees business In all states in Australia (except Tasmania which bans all surrogacy all together under the Surrogacy Contracts Act 1993), altruistic surrogacy has only recently become legal. However, in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offence, although the Northern Territory has no legislation governing surrogacy at all and there are no plans to introduce laws on surrogacy into the NT Legislative Assembly at any foreseeable point in the future. Before this was a criminal offence the two main countries people chose sarrogant mothers was in India and the USA, as well as 25+ other countries that’s if the couple don’t find a Volunteer to carry the baby in Australia. The Price for a legal and premium compony would range around $115 000 - $145 000, to pay the surrogate mother for the time, this would also pay medical fees and treatment, and would pay for the people involved and also the admin fee. And now this is an offence. And does not allow you to commercially use surrogacy. The only legal way currently to have a child through surrogacy in most Australian state and territories is by altruistic surrogacy (When the surrogate mother does it without any sort of payment). Australia has ruled that if a Surrogate mother changes her mind in any way throughout the pregnancy to keep the baby she will most likely get the baby. The status of the natural mother as the birth mother can be found in the status of children Act 1996 (NSW) Many cases have come forth for surrogate mothers to keep their babies even though the egg or sperm is not hers since she’s the ones carrying the baby for 9 months. But if the surrogate mother is said to be unfit to be a mother then the baby will be given to the paying family. It’s always decided on the best interest of the child. People that are against surrogacy always bring in the concept that people need to think about the future wellbeing of the child, and what mental effect it will have on him/her throughout the Childs life. Some people keep in contact with the surrogate mother and some people erase them from their life. There are many reports for and against surrogacy. The Sunday herald had an article on the January, 23, 2011 on a couple who had used the surrogation program oversees. An Indian woman had been paid by two people, Krista and Matt through an Indian compony to carry their baby. This was legal during this time. From March 1st, 2011, it was made illegal for anyone in Australia to pay a willing Indian mother or any mother oversees to carry a baby. If this is to be breached then there is an $110,000 fine with 2 years imprisonment If in a same-sex relationship and you use surrogacy as an option then the doctors would normally ask both males for the sperm and they would not tell who the father is. The only way to find out after this if they want to know is through blood tests. As the technology grows and develops such as IVF are creating new challenges for the law. And the government at the same time have to keep up with these new advancements. Since same sex couples are in a de facto relationship they eligible to use the surrogate program under the circumstances they abide by the same laws. Same sex couples fight on regular bases to try and vote in same sex marriages. In the mean time the best they can do is stay as a de facto couple (government recognized relationship/Not married) Same sex couples as de facto’s can still adopt or use the surrogacy program, they can still claim inheritance from the deceased partner. Between 1999 and 2007, all the states and territories passed reforms that same sex couples are to have the same rights as heterosexual couples, however same sex couples were not giving the broad range of commonwealth laws that heterosexuals get. Same sex couples have the same rights as cohabiting heterosexual couples under state law (Family Law 1975) Same-sex couples are defined as persons of the same sex living together in the same household and reporting a de facto relationship. While some People support the same sex marriage (Gay community) rally some people don’t. The Australian Government puts forward new law reforms every year including the vote of same sex couples getting married but it has not been successful at this time The church only recognises marriage as a man and woman have eternal bound together. So this does not include gay marriage The notion of marriage as defined in the Marriage Act 1961 is discriminatory and has lost touch with the reality of how relationships are conducted in today's society. Section 46 of the Marriage Act states that marriage is the voluntary union for life of one man and one woman to the exclusion of all others. This definition taken from the UK case of Hyde v Hyde (1866) is the one adopted in Australia. This definition comprises four central ideas. Marriage must be a voluntary union. The voluntary union must be intended for life "till death us do part." And finally, marriage must be a union between a man and a woman to the exclusion of all others. The Marriage At 1961 (Cth) and various state legislations give heterosexual couples a number of rights and obligations whereas Same sex couples are excluded from this all together due to the Same sex marriage law. The first country to allow same sex marriage is the Netherlands then Spain, Belgium and Canada to follow. Between the years 2000-2009, many Australians states and territories introduced a number of law reforms recognising same-sex couples in specific areas. The health care system (Health insurance Act 1973) now allows same-sex couples and their children to register as a family and apply for Medicare and receive the same entitlements as Heterosexual couples. Over the years same sex couples have been secluded from society and had no benefits. It has taken years to come as far as they are now, even now if they want to adopt in South Australia and some other states they have to apply to adopt as a single parent because they do not recognise same sex de facto couples. South Australia, Northern Territory, and Victoria cannot adopt but are eligible to become foster parents. Between 1999 and 2007, all states and territories in Australia passed reforms to recognise same-sex de facto partners as equal to heterosexual-sex partners. However, same-sex de facto relationships were not given recognition in a wide range of Commonwealth laws. This prevented same-sex couples from accessing many benefits which were available to heterosexual-sex couples. It also relieved them from a number of obligations imposed on opposite-sex couples.  Commonwealth laws also did not recognise children living in same-sex families. On 1982 the NSW anti-Discrimination Act 1977 was amended to prohibit discrimination on the grounds of homosexuality. The reforms amend 84 Commonwealth laws to eliminate discrimination against samesex couples and their children in a wide range of areas, including, taxation, Medicare, veterans, affairs, workers compensation, educational assistance, superannuation, family law and child support. Some of the laws have already commenced, whilst the remaining laws will commence by 1 July 2009 Most of these changes such as the Defence and Veteran Affairs allow access to entitlements including the provisions of assistance to current Defence force members to acquire a home. And the immigration and citizenship same-sex partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens will be able to apply for the same partner visas as opposite-sex partners. Same-sex couples (and their children, in many cases) will have the same entitlements in relation to acquiring citizenship. 85% of gay couples vote for gay marriage and this is inevitable. It will be voted in ONE day. References: http://en.wikipedia.org/wiki/Surrogacy http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Surrogacy_the_issues'open http://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_Australia www.australianmarriageequality.com/ www.abs.gov.au