An Estimated 10-15 per cent of Australian couples who want to start a family are infertile, similarly same-sex couples are unable to reproduce and this has led to the use of surrogacy and birthing technologies to provide a means to overcome such barriers in having children. The changing views of society along with the corresponding reforms of the law in relation to these procedures have been main contributors to contemporary issues within the area being addressed, however the effectiveness of legal and non-legal measures in place is questionable. With diverse perspectives and interpretations on what is a just outcome for all parties involved, it is difficult to evaluate such a controversial matter.
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Issues relevant today in relation to surrogacy include the exploitation of women overseas through commercial surrogacy as well as the presumption of parentage and parentage orders, even with the approval of legal measures dealing with such problems, conflict of views indicate many people do not agree and feel there is a great need for reform. Birthing technologies hold many interrelated issues of concerns with difficulties in defining legal parents in relation to birth certificates as well as the roles and responsibilities of gametes donors. The amendment of previous laws in addition with the introduction of new ones aim to better reflect the changing values of society with non-governmental organisations and the media attempting to assist in informing the public and creating awareness with current issues.
Surrogacy is a difficult issue, especially in Australia where the law varies from state to state. Many infertile Australian couples seek the services of surrogate mothers overseas in the United States, India and other countries, spending up to $80,000 and risking breaking the law. The current issue of concern in this, is not only the exploitation of poor women but also the Australians being overcharged by these clinics as well as the legal status and protection of children caught up in the booming overseas surrogacy trade.
Currently under Australian law, altruistic surrogacy is acceptable however commercial surrogacy is banned in all states, excluding the Northern Territory with no current legislation targeting surrogacy. The Surrogacy Act 2010 was designed to accommodate altruistic surrogacy moving against commercial surrogacy, while setting out safeguards to achieve the best interest of the child and attempt to uphold all surrogacy agreements. This can be seen as an effort to sufficiently reflect societal views within the law as a 1993 survey revealed community attitudes towards commercial surrogacy had a 30% approval rate whereas 59% disapproved.
Since its commencement in March 2011 overseas commercial surrogacy arrangements have also been made illegal in NSW, Queensland and the ACT, with the NSW Parliament introducing extraterritorial provisions that extend the offence to outside the jurisdiction for residents, who could possibly face fines of up to $100,000 or up to 2 years prison if caught. This legal measure however is questionable in its ability to achieve the best outcome for the child, being a punishable offence and enabling the imprisonment of parents or subjecting them to a financial hardship could only worsen the situation for a child involved.
Moreover this amendment to the bill was willfully added with little review of its consequences, motivated to reduce the exploitation of poor women in developing countries, it fails to ensure the best interest of the child and that justice is achieved. Failure of existing law has led to a further need for reform as the criminalization of overseas arrangements is difficult to police and unenforceable which has created issues of compliance and non-compliance. Currently an estimated 40 per cent of India’s $2.5 billion commercial surrogacy industry is made up of Australian clientele, however complaints about the overcharging nature of these clinics are increasing. This is problematic as there are few protections for intended parents in India with its unregulated industry as well as the legal restrictions in Australia, creating difficulty in the ability to monitor such arrangements.
Chief Federal Court Magistrate, John Pascoe issued a statement in December proposing Australia should legalise commercial surrogacy to ensure that agreements are properly regulated to protect children, surrogates and commissioning parents. This statement attempts to introduce a different approach similar to that of California, which relies on executed contracts between intended parents and the surrogate, defining the legal status of the child as well as the responsibilities of all parties. NSW Greens MP David Shoebridge commented on the present act saying “What began as a progressive legislation giving equal rights to all children has ended up as regressive legislation which will force parents underground and create uncertainty around many children’s parenting”. Pascoe’s proposal would allow for better control of the issue, avoiding the criminalisation of parents and the need for intending parents acting outside of the law, which has been the result of present legislation.
Surrogacy Australia is a non-governmental organisation and advocacy group, which is currently addressing the concern for intended parents involved in overseas arrangements who are being cheated and taken advantage of by clinics. Increasing complaints to the organisation as well as research collected, suggests Australians are being overcharged by up to 40 per cent and more so being billed for unnecessary medical procedures on surrogates. Surrogacy Australia is a support organisation assisting those who require help and access to information, with a present focus on warning and creating awareness of this concern, for those in the future considering the surrogacy option.
Research by the group also suggests the ineffectiveness of the existing laws, revealing the ban on commercial surrogacy, deters only 7 per cent of considering parents and this places a certain pressure on the government to reconsider its prohibition. A further issue arising from the inconsistent laws targeting surrogacy in Australia is the presumption of parentage, whether in cases of genetic or gestational surrogacy. Under the previous legislation, with cases governed by the Status of Children Act 1996, a child’s legal parents were its birth mother and her husband or de facto partner, irrespective to whether birthing technologies were used. For intending parents this caused a number of legal problems as they could be subject to tumultuous legal obstacles when applying for full parental rights and therefore led to the commencement of the Surrogacy Act on the 1st of March 2011.
The reformed Surrogacy Act 2010 (NSW) has recognised certain altruistic surrogacy arrangements and created a process for transferring legal parentage from the surrogate mother to the intended parents in a more time-effective manner. The eligibility requirements and preconditions to obtain a parentage order are also contained in this act and this is for purposes of creating a more structured system, considering the best interest of the children and also to regulate arrangements, as they cannot be enforced, except by the birth mother. The stated aim of surrogacy laws in Australia has been and remains to be the prevention of exploitation of vulnerable adults, to avoid the commercialization of reproduction and to protect the best interests of children.
However children born overseas through surrogacy are not the legal children of their Australian intended parents; none of the state inquiries directly address the problem of parentage for children when adults travel out of the jurisdiction and or pay a birth mother to carry the pregnancy and this creates another challenge for parentage orders. Intending parents cannot lodge an application for a transfer of parentage until they return to Australia and currently the Australian Citizenship Act 2007 excludes commercial surrogacy. This is a contradiction in the attempt to protect the child, with courts torn between two irreconcilable concepts, finding on one hand parliaments intention to prevent commercial surrogacy with a clear policy across the country, and on the other the courts duty to mitigate such policy by consideration of the child’s welfare, who may end up a stateless orphan if orders are not made. Recent changes to commercial surrogacy in India however, may be of assistance in preventing such situations from occurring. The Indian government has issued a directive that only couples who have been married for more than two years can enter into commercial surrogacy arrangements, and only if it is legal in their home country and this will have a huge impact in making Australian law unavoidable.
Moreover on parentage orders, the increasingly complex web of eligibility rules developed through successive reforms to safeguard the interest of children, appear to also be inadequate with the family formation behaviours of those involved in surrogacy. This was demonstrated in the case of AP v RD (2011) NSW, which took place prior to the commencement of the Surrogacy Act on The 1st of March, with its provisions and requirements remaining, AP applied for a parentage order under the Surrogacy Act in the Supreme Court. This parentage order could only be made with all the preconditions met and in this instance the court was satisfied that the arrangement was made prior to conception, however declined to make the parentage order due to the provision of a counselor’s report and evidence confirming the parties consent was not to a satisfactory level .
This shows the courts ability to protect and ensure the rights of the surrogate mother and her partner, as consent is a dominant requirement in surrogacy arrangements. Although indicates an ineffectiveness in achieving justice for intending parents, demanding an excessive amount of evidence to allow parentage orders. With the intention to create better circumstances and gain parentage rights regulated by the law, these precautions can be seen to make it somewhat difficult for arrangements to be followed through as seen in this particular case.
The reform inquiries were commenced by hastily arranged parliamentary inquires, where only six to nine months was allocated for the entire hearing and reporting process. This implies the new laws in Australia are based not on evidence of the actual behaviour or needs of families formed through surrogacy to date, but rather on inaccurate ideas and assumptions about the threats and problems with surrogacy and how they can be ‘improved’. The Federal Attorney-General, Phillip Ruddock, is calling on the states to bring “some uniformity” to the widely different laws covering surrogacy and this is an indication for a further need to reform.
Prior to reforms made to the Family Law Act 1975, a birth mother that used an artificial conception procedure to conceive, in a same-sex relationship, was unable to legally identify her female partner as a parent, whereas in the case of heterosexual relationships, the law allowed the husband or male partner to be recognised as a parent. Before 2008 children born to lesbian couples only had one legal parent, and it was not uncommon for a sperm donor’s name to be recorded in recognition of their biological relationship. The Human Rights and Equal Opportunity Commission found this to be inequality in the law and an issue of discrimination. The fact that the Family Law Act was designed to accommodate and emphasise the heterosexual family also caused difficulty for judicial officers to resolve cases and disputes within same-sex families.
In response to this, the NSW government in 2008 amended the Status of Children Act 1996 (NSW) and the Births, Deaths and Marriages Registration Act 1995 (NSW) with the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW). This created a parenting presumption in favour of women of same-sex relationships, through recognising the female co-parent of children born through birthing technologies as well as allowing both mothers to be listed on the child’s birth certificate. Accomplishing the best interest of the child who no longer will only have one legal parent, the act also successfully reflects the change in community attitudes as negative societal outlooks on homosexuality has decreased with recent years presenting a more accepting nature.
A birth certificate creates a rebuttable presumption of parentage however a presumption arising out of use of a fertilization procedure is certain. The case of AA v Register of Births, Deaths and Marriages and BB (2011) focused on a man who donated sperm to a lesbian couple, considering himself to a father to the child conceived while forming a loving relationship with her and contributing thousands in support payments. This was the first case of its kind after the amendments made to the law in 2008, attempting to forcibly remove BBs name from the child’s birth certificate in a court battle that succeeded.
Bringing forward the notion of legal parents versus biological parents creates the potential for complex issues surrounding children born to same-sex couples. Sperm donors have no legal parental status even if they’re on a birth certificate, with partners of lesbian mothers gaining that right automatically with the introduction of the act in 2008. Judge Walmsley, involved in the case, suggested allowing for three parents to be on the birth certificate as he recognised its powerful symbolism. However it is not possible under NSW law to have three parents with legal responsibilities, had he had sexual intercourse with the mother or married her, he would have gained this legal status. This essentially highlights the inadequacy of laws dealing with multi-parent families.
Janet Loughman the Principal solicitor of Women’s Legal Services NSW stated, “Contrary to popular belief birth certificates do not make you a parent, they are just proof, like a drivers license. They record legal parentage, not genetic parentage. It is the legal parents who need that proof as they go about the daily business of raising the child”.
Even so, donors do not often involve themselves in the life of their child and prior to 2010; the Status of Children Act 1996 (NSW) stated that the identity of donors would be concealed allowing them to maintain their right to privacy. However this resulted in concerns arising for the children, as they were likely to suffer from lack of information about their genetic heritage with identity crisis or medical and social dilemmas impacting them negatively. The Assisted Reproductive Technology Act 2007 commenced on the 1st of January 2010, with it, introducing the National ART Donor Registry. The Assisted Reproductive Technology Regulation 2010 specifies by law what information about both the donor and donor conceived child must be provided and recorded in the registry, which is then accessible by the child at the age of 18. Significantly the rights of the child are being addressed, although this is not concurrent with those of the donor, with the legislation only allowing their access to the child’s date of birth and sex.
The commencement of this legislation has provoked a wide range of responses and this in itself speaks for its effectiveness in the view of the community. The opposition health spokeswoman, Jillian Skinner commented on these changes to the bill saying, “Proposed new laws to assist donor children to know who their fathers are, have been a long time coming”. Suggesting the NSW government had a delayed response to this current problem for children, as drafts for the legislation were introduced to parliament in 2003 implies an unproductive approach in assisting children in these situations. This has now resulted in confusion towards the stance of the law in prioritising the best interest of the child or upholding privacy rights of donors prior to the enactment of the regulation.
In the past 10 years, fertility clinics have only allowed donations from men who are willing to provide their identity for recording and this has resulted in the number of sperm donations decreasing by more than half between 1998 and 2008 according to the President of the Fertility Society of Australia, Peter Illingworth. Through the establishment of the ART Donor Registry it can then be assumed this will lead to an even further decline in the number of sperm donations in Australia. Peter Illingworth also commented on the exposure of donor identities, which may occur due to the introduction of the legal clause giving the government power to demand access to this information. “We can’t release the information at all without the donor’s consent and it is as simple as that… consent over-rides everything”, emphasising the importance of their right to privacy and the fact that this legislation was not enforceable when they chose to donate sperm plays into the injustice that will occur if the government chooses to enable such actions.
Regardless of this Jillian Skinner feels “The rights of children will now be enshrined in the legislation so that any child born through ART will, after they turn 18, be able to know the details of their biological parents”. Being the most important focus this understanding emphasises the fact that the current regulation, does provide a legal certainty that the best interest of the child is ensured. The media can be accredited through its release of numerous articles keeping track of the process and government introductions of new laws and regulations. Ensuring the community is aware and informed of changes in legislation that may impact on previous sperm donors or those considering donating, will help avoid any confusion or injustice occurring in the future.
The commonwealth government of Australia cannot universally legislate for reproductive technology practice. Therefore each state and territory is responsible for designing and implementing separate legislation. This has resulted in laws and practices that differ from state to state. Advances in birth technology have created a great need for law reform as they challenge the long-standing moral and legal conceptions of ‘family’ and ‘parent’. It is difficult to compare surrogacy with other reproductive methods, as the surrogate mother is undergoing all the emotional, mental and physical feelings of pregnancy, not simply donating an ovum and therefore laws in place protecting surrogate mothers in Australia and overseas are important, however are useless when they compromise the rights of intended parents and the children.
The current debate, taking place in Australia reflects the rapidly changing legal landscape and societal attitudes in relation to surrogacy and assisted reproductive technology. The wide divergence in Australian and international laws are indicative of the range of opinions about surrogacy and assisted reproductive technologies and of the challenges lawmakers face in staying up to date with these new technologies. Thus far the attempt to satisfy and cater for all contemporary issues within the area can be furthered to remove inconsistencies between state and federal, as well as clarify legal rights of all parties involved. However laws relating to these issues have been slow to pass with the government and courts constrained by existing legislation, suggesting the legal and non-legal measures are more so ineffective than they have been efficient.