Parentage, Surrogacy and the Perplexing State of Australian Law: A Missed Opportunity.

Following the decision of Bernieres v Dhopal (2017) 324 FLR 21; [2017] FamCAFC 180 it seems that intended parents of children born via overseas compensated surrogacy arrangements will not be recognised as legal parents in Australia. This decision results in harmful outcomes for children and represents a missed opportunity for the Full Court of the Australian Family Court to resolve this issue. Therefore, this article is intended to act as a plea for a review of the approach. Acknowledging the difficulties faced by the Family Court in attempting to resolve issues of parentage in compensated surrogacy cases within the parameters of the Family Law Act 1975 (Cth), the authors suggest two possible alternative approaches. These approaches would enable the Court to stay true to the existing legislative framework while at the same time achieving what is clearly the desirable outcome for the children; that is: having their intended and functional parents recognised as their legal parents.

Measuring empathy in undergraduate law students: Examining the factorial validity of the Jefferson Scale of Empathy - Law Students (JSE-LS).

Several scholars have hypothesised a link between empathy and a range of important outcomes for law students including well-being, mental health and the development of effective client-lawyer relationships. However, few studies have examined these claims empirically. Empirical investigation of empathy among law students requires effective methods of measuring empathy. The present study sought to examine an instrument designed specifically to measure empathy among law students - the Jefferson Empathy Scale - Law Students (JSE-LS). The study involved examining the internal consistency and factor structure of the instrument using a sample of 276 Australian undergraduate law students. The study found that a four-factor solution was optimal for the dataset. Two of the factors were readily interpretable with previous literature, however the remaining two factors were unstable, suggesting the need for further revision of the instrument. Recommendations for revising the JSE-LS to better measure empathy are discussed.

A psychometric appraisal of the Jefferson Scale of Empathy using law students.

BACKGROUND: A growing body of literature indicates that empathic behaviors are positively linked, in several ways, with the professional performance and mental well-being of lawyers and law students. It is therefore important to assess empathy levels among law students using psychometrically sound tools that are suitable for this cohort. PARTICIPANTS AND METHODS: The 20-item Jefferson Scale of Empathy - Health Profession Students Version was adapted for a law context (eg, the word "health care" became "legal"), and the new Jefferson Scale of Empathy - Law Students (JSE-L-S) version was completed by 275 students at Monash University, Melbourne, Australia. Data were subjected to principal component analysis. RESULTS: Four factors emerged from the principal component analysis ("understanding the client's perspective", "responding to clients' experiences and emotions", "responding to clients' cues and behaviors", and "standing in clients' shoes"), which accounted for 46.7% of the total variance. The reliability of the factors varied, but the overall 18-item JSE-L-S yielded a Cronbach's alpha coefficient of 0.80. Several patterns among the item loadings were similar to those reported in studies using other versions of the Jefferson Scale of Empathy. CONCLUSION: The JSE-L-S appears to be a reliable measure of empathy among undergraduate law students, which could help provide insights into law student welfare and future performance as legal practitioners. Additional evaluation of the JSE-L-S is required to disambiguate some of the minor findings explored. Adjustments may improve the psychometric properties.

COMMERCIAL SURROGACY: WHAT ROLE FOR LAW IN AUSTRALIA?

This editorial begins by illuminating current conversations regarding the regulation of commercial surrogacy in Australia. It defines "commercial surrogacy" and explains the interaction between changes in social attitudes and changes to the law before setting out the current Australian law and practice in this area. An examination of current domestic law and practice reveals that surrogacy legislation in Australia is mired in inconsistencies and a lack of uniformity but that the one key common element is the prohibition of commercial surrogacy. The inability of couples to access commercial surrogacy within Australia has led to offshore reproductive tourism and unpredictable, contradictory decision-making as the Family Court attempts to apply legislation which was never intended to apply in this context. The editorial then turns to consider the international arena, discussing the approach of the Hague Conference on Private International Law before delving into a human rights analysis of commercial surrogacy arrangements. The adoption of a rights-based approach requires an analysis of this vexed issue from the perspective of the child, surrogate and intending parents. While questions surrounding the human rights implications of legalising commercial surrogacy continue to be the subject of passionate debate, the authors believe that the human rights of all parties are best protected through appropriate regulation rather than absolute prohibition.

The Family Courts and parentage of children conceived through overseas commercial surrogacy arrangements: A child-centred approach.

This article adopts a child-centred approach to the vexed issue of commercial surrogacy. These arrangements are prohibited throughout Australia. Nevertheless, Australians are travelling overseas and entering into commercial surrogacy arrangements. This article addresses the dilemma confronting the Family Courts when the commissioning parents and the child return to Australia. Should the Family Courts make parenting orders enabling the commissioning parents to raise the child? Alternatively, should they make parentage orders legally recognising the commissioning parents as the child's parents? After exploring the existing legislative structure and its application, the interest theory of children's rights is utilised to justify changes to the law so that the commissioning parents are regarded as the child's legal parents.

Known semen donors: to be or not to be a parent.

The law has failed to keep pace with the reality that lesbian couples are conceiving children and raising families. At both Commonwealth and State levels, a complex web of legislation engulfs and winds its way through this area of the law. This article seeks to expose some of the bizarre and anomalous consequences that have emerged through the interaction of these provisions and the resulting judicial interpretations. It is argued that this incongruous, unsatisfactory situation cannot be allowed to continue. Uniform State and Commonwealth legislation must be enacted and existing Commonwealth legislation modified to avoid ongoing inconsistencies. Finally, legislative amendments are recommended which, it is argued, will go some way towards rectifying the situation.