Qld: Review of Altruistic Surrogacy
Linda Lavarch
Last year the then Commonwealth Attorney-General, Phillip Ruddock called for uniformity between the States over surrogacy laws, so that the current mess might be fixed. Currently there are varying shades between that of New South Wales where there has been no regulation of surrogacy and that of Queensland where all forms of surrogacy are illegal and are criminal offences,including that of altruistic surrogacy.
Victoria, Western Australia, South Australia, Tasmania and now Queensland have announced reviews.
That of Queensland is by the Parliament’s Altruistic Surrogacy Committee chaired by former Attorney-general, Linda Lavarch.
SUBMISSIONS ARE REQUIRED BY 13 JUNE.</strong
Here is the Issues Paper (lightly edited by me) released by the Committee:
AIM
The committee has published this paper to inform consideration of the issues regarding altruistic surrogacy in Queensland.
The committee invites interested groups and individuals to make public submissions to the investigation based on the
questions posed, terms of reference below and any other matters considered relevant. The committee will give consideration
to all written submissions when writing its report and formulating its recommendations to Parliament.
THE PARLIAMENTARY SELECT COMMITTEE
On 14 February 2008, the Legislative Assembly resolved
that a select committee to be known as the Investigation
into Altruistic Surrogacy Committee be appointed to
investigate and report to the Parliament on the possible
decriminalisation and regulation of altruistic surrogacy in
Queensland. The committee commenced on 26 February
2008.
TERMS OF REFERENCE
The committee’s terms of reference require it to
investigate and report on the following matters:
a. Should altruistic surrogacy be decriminalised in
Queensland?
b. If so:
� What role should the Queensland Government play in
regulating altruistic surrogacy arrangements in
Queensland?
� What criteria, if any, should the commissioning
parent/s and/or surrogate have to meet before
entering into an altruistic surrogacy arrangement?
� What role should a genetic relationship between the
child and the commissioning parent/s and/or
surrogate play in any altruistic surrogacy
arrangement?
� What legal rights and responsibilities should be
imposed upon the commissioning parent/s and/or
surrogate?
� What rights should a child born through an altruistic
surrogacy arrangement have to access information
relating to his or her genetic parentage? Who should
hold this information?
� What, if any, other matters should be considered in
the regulation of this issue?
The committee’s terms of reference exclude consideration
of commercial surrogacy, which is illegal throughout
Australia.
The committee is required to report to the Legislative
Assembly by 30 September 2008.
INVESTIGATION PROGRAM
6 May 2008 Issues paper released calling for
submissions
13 June 2008 Closing date for submissions
16 June – mid-August Public consultation
30 September 2008 Report to Parliament
BACKGROUND
Queensland is the only Australian state in which altruistic
surrogacy is a criminal offence. The Surrogate Parenthood
Act 1988 (Qld) makes it an offence to enter into, or offer to
enter into, a surrogacy contract, whether commercial or
altruistic, and whether or not the offence occurs in
Queensland or elsewhere. Offences against the Act can
attract a maximum penalty of $7,500 or 3 years
imprisonment.
In all other Australian states and territories altruistic
surrogacy is permitted. However, each jurisdiction
approaches the regulation of surrogacy in different ways.
The status of surrogacy in Queensland has been
examined previously. In February 1983, the Queensland
Government appointed a ‘special committee’ to inquire
into laws relating to artificial insemination; in vitrofertilisation
(IVF); and other related matters, including
surrogacy. The special committee, chaired by the Hon
Justice Demack, reported in March 1984. It recommended
that whilst altruistic surrogacy contracts should be void or
legally unenforceable, entering into them should not be a
criminal offence.
However, the Queensland Parliament legislated to prohibit
all forms of surrogacy in 1988. It was argued that:
� it was dehumanising to use and pay another human
being to reproduce;
� babies must not be used as commodities; and
� Queensland should seek to avoid the trauma and
legal battles associated with surrogacy in other
jurisdictions.
The issue was again canvassed by a Taskforce on
Women and the Criminal Code. In its report, released in
2001, the taskforce noted the range of community views
on the matter. Although the taskforce was divided on
some issues, it took a consensus view that the Surrogate
Parenthood Act 1988 be amended to remove the sanction
on altruistic surrogacy as:
it was generally felt inappropriate and unhelpful to
involve the criminal justice system in this intensely
private matter between relatives and friends.
It also recognised that, if surrogacy agreements were to
be permitted in Queensland, the extent to which they
should be regulated would need to be addressed. The
Government did not support the taskforce
recommendations regarding surrogacy at that time.
A review of surrogacy laws is currently occurring in a
number of Australian jurisdictions.
On 14 February 2008, Hon Anna Bligh MP, Premier of
Queensland, tabled a briefing paper outlining a case for
reform and stated that “the Queensland Government
believes the time has come to decriminalise altruistic
surrogacy”. The Premier called for the establishment of
this committee to further examine whether altruistic
surrogacy should be decriminalised and what regulation
might be desirable.
The Victorian, South Australian (SA), Western Australian
(WA) and Tasmanian parliaments are currently giving
consideration to revising their surrogacy laws:
� The Victorian Law Reform Commission (VLRC)
delivered its Assisted Reproductive Technology and
Adoption Final Report in March 2007;
� The WA Surrogacy Bill 2007 is currently being
reviewed by the Legislative Council Standing
Committee on Legislation, due to report on 8 May
2008;
� The SA Social Development Committee (‘SA
committee’) completed its Inquiry into Gestational
Surrogacy in November 2007; and
� The Tasmanian Legislative Council announced a
select committee inquiry into surrogacy on 1 April
2008.
Nationally uniform legislation to regulate surrogacy is also
under consideration by the Standing Committee of
Attorneys-General (SCAG).
There are a number of factors influencing this renewed
focus:
� Very few Australian-born children are now available
for adoption (only 14 locally born children were
adopted in Queensland in 2006-07);
� There has been an increased use and social
acceptance of infertility treatment or assisted
reproductive technology (ART) over the last decade;9
and
� There is greater social recognition of the diversity of
family types raising children, including extended,
nuclear and blended families and families headed by
single parents and same-sex couples.
Some of the impetus for reform also appears to have
come from those concerned about a lack of legal
recognition of parents and children in surrogacy
arrangements. It is suggested that this can lead to
practical difficulties, for example, in relation to passport
applications, medical treatment, eligibility for child support
if commissioning parents separate, eligibility for social
security and taxation allowances and inheritance.
DEFINING ALTRUISTIC SURROGACY
For the purposes of this issues paper, surrogacy is
defined as a clear agreement whether formal or informal,
between a surrogate and commissioning parent/s for the
surrogate to bear a child for the commissioning parent/s
and permanently transfer the responsibility for the child’s
care and upbringing to them after the child’s birth. (Refer
to Question 10.)
The surrogate (or surrogate mother) is the woman who
bears the child. The commissioning parent/s is the person
or couple that asks a woman to act as a surrogate. See
Appendix B for a list of terminology used in relation to
surrogacy and abbreviations used in this paper.
As distinct from a commercial surrogacy arrangement, a
surrogate undertaking an altruistic surrogacy arrangement
is not motivated by material gain, but by a desire to help
others become parents. In many cases, the surrogate is a
close relative or friend of the commissioning parents.
In Queensland, the prohibitions under the Surrogate
Parenthood Act 1988 apply to situations where a woman
becomes pregnant pursuant to a (pre-pregnancy)
surrogacy contract and also to cases where a woman is
already pregnant and then agrees (pre-birth) to give the
child away.
Prior to the passing of the Act, Hon P McKecnhie MP
stated in his second reading speech of the Surrogate
Parenthood Bill that “the purpose of the bill is to make all
arrangements relating to surrogacy illegal in
Queensland”. Accordingly, the Act attempts to capture
every arrangement that resembles a surrogacy contract
and prohibit it.
An agreement made during pregnancy to bear the child
and permanently transfer responsibility for its care and
upbringing to another party may also be considered a
private adoption. Private adoptions are also prohibited
under the Adoption of Children Act 1964 (Qld).
SHOULD ALTRUISTIC SURROGACY BE
DECRIMINALISED?
The concept of surrogacy is not new. Native Americans,
West Africans, Pacific Islanders and Torres Strait
Islanders all have customary practices that involve child
rearing by parties other than the birth parents.
Queensland is the only Australian jurisdiction where
altruistic surrogacy is a criminal offence. Whilst the laws in
most jurisdictions (such as Victoria, SA and Tasmania)
prohibit commercial surrogacy, they do not consider
altruistic surrogacy an offence. Currently, in some
Australian jurisdictions (such as New South Wales (NSW),
WA and Northern Territory (NT)) there are no specific laws
around the practice of surrogacy. However, altruistic
surrogacy is regulated by industry standards for fertility
clinics and the National Health and Medical Research
Council (NHMRC) guidelines. In SA, altruistic surrogacy
is decriminalised in the sense that, whilst altruistic
surrogacy contracts are illegal, entering into them is not a
criminal offence.
The main rationale for sanctioning activities through
legislation is the prevention of harm to innocent parties. In
its review of research on the outcomes of surrogacy
arrangements, particularly regarding the outcomes for the
children born of these arrangements, the VLRC concluded
there was minimal available research to date to determine
whether or not there may be substantial harm to the
parties involved over the longer term.
The VLRC report described research undertaken in the
United Kingdom that focused on the effects of surrogacy
on the commissioning parents, surrogate and infant. This
study found that:
� generally the commissioning parents did not consider
the experience problematic;
� relationships between the commissioning parents and
surrogate were generally good and involved minimal
conflict;
� the majority of couples maintained contact with the
surrogate after the birth;
� there was greater psychological wellbeing and
adaptation to parenthood in commissioning parents
than in natural-conception parents; and
� there was no difference to other family types in infant
temperament, or child psychological development at
three years old.
However, some question remains around whether this
study involved a representative sample, so the results
should be interpreted with caution.
It is difficult to estimate the extent to which altruistic
surrogacy arrangements are occurring in Queensland.
The committee has identified five reported court cases for
surrogacy since the Act commenced. Additionally, the
Taskforce on Women and the Criminal Code received a
confidential submission from a Queensland couple
seeking a surrogacy arrangement in Canberra. The
committee is also aware of a newspaper report indicating
that Queenslanders may be travelling interstate to pursue
surrogacy arrangements.
It seems that the criminal prohibition of surrogacy in
Queensland may have been intended to act as a deterrent
rather than a severe punishment of the parties involved in
surrogacy. None of the individuals charged under the
Surrogate Parenthood Act have received severe penalties.
In most cases, the charges were dismissed and no
conviction was recorded. One woman received a good
behaviour bond for her involvement in arranging a
surrogacy agreement.
A case heard in 1998 by the
Family Court in Brisbane dealt with a custody dispute
involving a child born through a surrogacy arrangement. In
this case, no charges were laid under the Surrogate
Parenthood Act.
Despite the minimal penalties issued by the courts to date,
the criminal prohibition of surrogacy in Queensland still
has the potential to draw families into the criminal justice
system and severely penalise the parties to altruistic
surrogacy agreements.
The committee is seeking community views in weighing up
the:
• potential risks and moral issues associated with
altruistic surrogacy arrangements;
� potential benefits to people who are otherwise unable
to have children;
� impact of stigmatising and criminalising people who
seek to have a family through altruistic surrogacy; and
� importance of responding to practical difficulties (such
as the legal recognition of commissioning parents)
that may be associated with surrogacy arrangements.
Issues for comment:
1. Should the legal restrictions and criminal penalties against
altruistic surrogacy be removed from the Surrogate
Parenthood Act 1988 (Qld)?
APPROACHES TO LEGAL AND REGULATORY
REFORM
In examining proposed or recent legal and regulatory
reform regarding surrogacy in Australia, it appears that
there is a focus on two points of intervention. These are
when the parties:
� access ART services; and/or
� seek to transfer legal parentage from the surrogate or
birth mother to the commissioning parents after birth.
Where people seeking a surrogacy arrangement require
medical assistance, for example, with an embryo
transplant or screening procedures, they will inevitably
approach a fertility clinic. Governments can require clinics
to conform to eligibility criteria and codes of practice as
part of their licensing agreement. As is proposed in
Victoria, these criteria could be used in surrogacy cases,
to require prior clearance from a clinical ethics
committee.
Attaching conditions to access to ART services offers an
opportunity to limit or guide the surrogacy arrangement
before a baby is conceived. However, the limitation with
this focus on regulating surrogacy through access to ART
is that not all surrogacy cases may require medical
assistance. This has led to some jurisdictions only
permitting surrogacy when the parties use ART.
In Australia, there is limited capacity within adoption laws
to enable the transfer of legal parentage in the case of
surrogacy. There is also a commonly held presumption
that the birth mother is the legal parent of a child. This has
meant that governments in Australia have been
encouraged to develop specific provisions for the transfer
of legal parentage in the case of surrogacy.
This focus on the need to transfer legal parentage
appears to have shaped the development of a regulatory
regime that applies after the birth of the baby. In the
Australian Capital Territory (ACT) for example, existing
parentage laws have been amended, and in WA specific
surrogacy legislation is proposed, to give Courts the
responsibility to withhold the transfer of legal parentage
unless certain eligibility criteria have been met. This might
function as an incentive for compliance. However, it may
be difficult for parties to retrospectively comply with the
criteria if, for example, they did not rely on ART services.
In embarking on any regulatory reform, state and territory
governments may consider the role of family law in
clarifying parenting arrangements. The Family Court of
Australia has been used in surrogacy cases to resolve
disputes over a child’s residency after birth.25
Commissioning parents may also access family law
parenting orders, which detail, for example, who a child
lives with, contact and day-to-day care arrangements and
approaches to a child’s welfare and development.26
Parenting orders do not, however, change the legal status
of the birth parent or surrogate.
IF DECRIMINALISED, WHAT IS THE ROLE OF THE
GOVERNMENT IN REGULATION OF ALTRUISTIC
SURROGACY?
The committee has been asked to investigate, if altruistic
surrogacy is decriminalised, whether and to what extent
the Government should play a regulatory role in surrogacy
arrangements. A review of approaches in place or being
considered in other jurisdictions indicates the emergence
of some key principles underpinning the regulation of
altruistic surrogacy, as follows:
(i) The best interests of the child should be the primary
consideration.
It is generally agreed that the child is the most vulnerable
person in a surrogacy arrangement. The principle of the
best interests of the child underpins both family law and
child protection policy and is grounded in international
commitments. For example:
� Article 25 (2) of the United Nations Declaration of
Human Rights (1948) states:
…childhood [is] entitled to special care and
assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection; and
� Article 3 of the United Nations Convention on the
Rights of the Child (1989) states:
In all actions concerning children, whether undertaken
by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary
consideration; and
…parties [to the convention] undertake to ensure the
child such protection and care as is necessary for his
or her well-being, taking into account the rights and
duties of his and her parents, legal guardians or other
individuals legally responsible for him or her, and to
this end, shall take all appropriate legislative and
administrative measures.
The principle of the best interests of the child might
include recognition of a child’s need for a safe, secure
family environment and a sense of clear identity and
belonging, and loving, nurturing relationships.
In practice, pursuit of this principle could also mean
governments acting to protect a child’s right to information
about his/her genetic history and the circumstances of
their birth.
(ii) Intrusion into people’s private lives is kept to a
minimum.
Decisions to have a baby, to become parents and to raise
children are intensely personal. People generally expect
that these are matters only to be shared with closest
family and friends. In response to this norm, this principle
seeks to minimise government intrusion into people’s
private lives in the regulation of altruistic surrogacy.
(iii) Health and wellbeing of the surrogate, the
commissioning parents and their families is protected and
promoted.
While altruistic surrogacy may have many positive
outcomes for commissioning parents, this principle
recognises that there are risks to the health and wellbeing
of the parties to surrogacy arrangements (i.e. the
surrogate or birth mother, her partner and the
commissioning parents) and their families (e.g. siblings
and grandparents).
Governments can develop policy and laws that help to
minimise the potential risks. For example, this principle is
consistent with the NHMRC guidelines for ART which take
account of the “long-term health and psychosocial welfare
of all participants” including children, parents and donors
when accepting parties to participate in ART.
(iv) Conflict between the surrogate and the
commissioning parents is prevented and minimised.
There are many difficult issues which can arise in the
course of a surrogacy arrangement for the parties to the
agreement and their families. Some of the issues include:
� medical complications during pregnancy and birth and
the management of the pregnancy;
� the impact of relinquishment on the surrogate and her
family;
� the potential birth of a child with a disability;
� the need to clarify legal parentage;
� ongoing communication between the surrogate and
child;
� liability for child support; and
� the child’s right to access information about their
genetic history and circumstances of birth.
Other jurisdictions believe that governments can play a
role in preventing and minimising conflict between the
parties in relation to such issues.
In practice, the protection of the parties’ health and
wellbeing and the minimisation of conflict could include a
requirement for informed consent and mandatory,
independent counselling for all parties to an agreement. It
could also include the Government making a provision for
the transfer of legal parentage from the surrogate to the
commissioning parents, with or without certain conditions.
Issues for comment:
2. Should the Queensland Government play a role in
regulating altruistic surrogacy arrangements in
Queensland? If so, how can the Government regulate
altruistic surrogacy arrangements in a way that:
� ensures that the best interests of the child are
protected;
� minimises intrusion into people’s private lives;
� protects the health and wellbeing of all parties; and/or
� ensures that any conflict between the surrogate and
the commissioning parents is prevented or minimised?
3. What other issues should be addressed by the
Government?
WHAT CRITERIA SHOULD SURROGATES AND
COMMISSIONING PARENTS HAVE TO MEET?
The committee has been asked to consider whether
commissioning parents and/or surrogates should have to
meet certain criteria in order to enter into a surrogacy
arrangement. When identifying such criteria there is a
need to give careful consideration to the:
� purpose or benefits of imposing a specific criterion;
� practicality of monitoring and enforcing a criterion;
and
� possible unintended consequences of a criterion.
As previously noted, regulatory criteria are often attached
as conditions for access to ART services or for the
transfer of legal parentage from the surrogate to the
commissioning parents.
Some of the criteria for commissioning parents or
surrogates being implemented or explored across
Australia are detailed below:
Specific criteria for commissioning parents
Two commonly held criteria for commissioning parents
include:
� infertility, health risk associated with bearing a child,
or concern with passing on a genetic condition with
serious health impacts;30 and
� a requirement that they are at least 18 years of age.31
There are some differences in approach across
jurisdictions in relation to the genetic contribution required
and the eligibility of certain family types:
� Genetic contribution: In the ACT, at least one
commissioning parent must be biologically related to
the child. Other jurisdictions that permit surrogacy
do not have this requirement; and
� Family types: The ACT requires commissioning
parents to be a couple. The Surrogacy Bill 2007 in
WA proposes that single women may also be eligible
as commissioning parents if they meet ART eligibility
requirements. The reports of the VLRC and the SA
committee support a non-discriminatory approach,
irrespective of relationship, marital status or sexual
orientation.
Specific criteria for surrogates
There is a clear move in SA, Victoria and WA towards the
removal of the current requirement for surrogates to be
infertile to access ART. This requirement has limited
individuals’ access to surrogacy in these states and has
forced people to travel interstate to undertake ART
procedures.
The VLRC report proposed that the surrogate mother
should be at least 25 years of age.
The ACT only allows the transfer of legal parentage from
the surrogate to the commissioning parents when the
surrogate has conceived through IVF and is not the
genetic mother.
Some consideration has also been given to whether
surrogates need to have previously given birth or
completed their own family. It has also been suggested
that choice of a surrogate who is a sister, mother, cousin
or long standing friend may help prevent conflict and
strengthen existing relationships.
Common criteria for commissioning parents and
surrogates
Some of the current or proposed criteria for both
commissioning parents and surrogates include:
� demonstration of informed consent through specialist
counselling and independent legal advice;
� the need for surrogacy arrangements to be agreed
pre-conception;
� a requirement that parties are resident in the
jurisdiction; and
� the exclusion of parties convicted of sexual or violent
offences or subject to a child protection order, without
specific assessment and approval.
Queensland adoption requirements
Requirements for adoptive parents might also be relevant
to the development of criteria for commissioning parents.
These requirements include:
� Prospective parents must be heterosexual couples
who have been married for at least 2 years;
� At least one of the prospective parents must be an
Australian citizen and both must be resident in
Queensland;
� They must not have a physical or mental condition, or
disability, which would impact on their capacity to
provide a high level of stable, long term care for a
child;
� They must have no more than one child in their
custody; and
� They must be deemed infertile.
Assessing criteria
The following is an example of the way criteria might be
assessed. Using an age requirement for surrogates,
considerations regarding the benefits, monitoring and
enforcement and consequences of imposing age
restrictions might suggest:
� Benefits: Age may be only one factor in indicating
health or sufficient maturity to make a decision to
enter a surrogacy arrangement. The preparedness of
individuals may be better determined through
counselling or a medical examination;
� Monitoring and enforcement: It may be difficult to
monitor and enforce age criteria before becoming
surrogates other than when accessing an ART
service; and
� Consequences: It could be argued that people who
fall outside of the age criteria who have had a
previous pregnancy, for instance, may be considered
more capable of informed consent than people who
have not had children. It needs to be considered
whether failure to meet an age criteria should
preclude the transfer of legal parentage of the child to
the commissioning parents.
Issues for comment:
4. What criteria, if any, should the commissioning parent/s
and/or surrogate have to meet before entering into an
altruistic surrogacy arrangement?
In responding to this question, please outline:
� the reason for your choice;
� how you believe criteria could be monitored and
enforced;
� any consequences or dilemmas you see in adopting
the criteria; and
� any suggestions you may have to manage any of the
issues identified.
5. Should criteria for commissioning parents be similar to that
for adoptive parents?
WHAT ROLE SHOULD A GENETIC RELATIONSHIP
PLAY?
There are a number of genetic relationships that are
possible within surrogacy arrangements.
In partial surrogacy, the surrogate is the genetic mother as
she contributes her gametes, which may be fertilised by
gametes from the commissioning father or a donor.
In gestational (or full) surrogacy, the surrogate mother
carries (or gestates) a baby which is not genetically her
own. The baby is created by gametes from the
commissioning parents or donors.
In a gestational surrogacy arrangement, one or both of the
commissioning parents could be the child’s genetic parent.
In a partial surrogacy arrangement, the commissioning
father could be a genetic parent.
Surrogacy arrangements may create very complex family
relationships. For instance, if both commissioning parents
are infertile, there may be six people involved: two donors,
the commissioning parents and surrogate parents.
In considering what role the genetic relationship should
play in an altruistic surrogacy arrangement, it may be
useful to consider whether gestational surrogacy
arrangements have different outcomes from partial
surrogacy arrangements and whether the genetic
relationship should play a role in the transfer of legal
parentage.
Outcomes of gestational v partial surrogacy arrangements
Research suggests it may be easier for the surrogate
mother to relinquish the child when she is not the genetic
parent. In this situation, the child is not a genetic sibling
of any other child of the surrogate. An Australian study of
gestational surrogates indicated that they were able to
treat the pregnancy differently to previous pregnancies
with their own children. One surrogate explained:
[The baby is] not part of me…It’s their egg, their
sperm…Basically I am just growing it, so it’s no part of
me. I am just helping it grow. I couldn’t do it if it wasn’t
my sister and it was any part of [my partner] and
myself.
The VLRC identified examples of gestational and a partial
surrogacy with different outcomes:
Alice Kirkman: Alice Kirkman was born in 1988 in Victoria.
Alice was conceived from an egg from her ‘commissioning’
mother (Maggie Kirkman) which was fertilised with a family
friend’s sperm and carried by Maggie’s sister, Linda. A
hysterectomy had left Maggie Kirkman unable to bear a child
and her husband was infertile. Alice, now an adult, says she
has no concerns about surrogacy.
Evelyn (name withheld to protect parties): The 1998 Australian
Family Law case of Re Evelyn involved a partial surrogacy
arrangement between close friends. Evelyn was conceived
using her surrogate mother’s egg and her commissioning
father’s sperm. Evelyn lived for 12 months in Queensland with
her commissioning parents. However, her surrogate (and
genetic) mother could not relinquish the baby. The Court found
in favour of Evelyn’s surrogate mother and awarded custody of
Evelyn to her.
The VLRC report did not attribute the different outcomes
of these cases to the genetic relationships between the
parties. Instead, it concluded that:
A genetic connection between the child and the
commissioning parent(s) is to be preferred, but
people should not be excluded from commissioning a
surrogacy if they are unable to contribute their own
gametes.
The VLRC report did not rule out partial surrogacy
arrangements.
Some suggest that partial surrogacy can be less complex.
Where a commissioning mother is unable to contribute
genetically, insisting that the surrogate must not use her
gametes adds another person to the conception equation.
Consideration for transfer of legal parentage
In all Australian jurisdictions, the birth mother is
automatically recognised as the legal parent of a child. In
the case of surrogacy, this means that the surrogate
mother (whether or not she is genetically related) is
considered the legal mother and registered as such on the
child’s birth certificate. Under the Status of Children Act
1978 (Qld), the surrogate mother and her male partner (if
she had one) would be considered the legal parents in a
surrogacy arrangement in Queensland.
Australian jurisdictions also provide that:
� Surrogacy arrangements should not be legally
enforceable (meaning the surrogate mother cannot be
forced to relinquish the baby); and
� The transfer of legal parentage should be conditional
on the approval of the surrogate mother and her
partner.
In the ACT, the genetic relationship is important when it
comes to transferring legal parentage to the
commissioning parents. The Parentage Act 2004 only
allows transfer of legal parentage where:
� At least one of the commissioning parents has a
genetic connection to the child; and
� The child was conceived using IVF and the surrogate
is not the genetic mother.This is not the approach proposed by the VLRC which
recommended provisions to allow for the transfer of legal
parentage in surrogacy arrangements that were not
contingent on the genetic contribution of commissioning
parents.
The SA committee report on gestational surrogacy
recommended that:
…a process is developed to allow the legal transfer of
parenthood to occur without the need for commissioning
parents to adopt their own genetic child.
This responds to a particular objection from genetic
parents to having to adopt their own genetically-related
baby.
Issues for comment:
6. What role should a genetic relationship between the child
and the commissioning parent/s and/or surrogate play in an
altruistic surrogacy arrangement?
In responding to this issue, you might wish to consider any
evidence or experience relevant to:
� the role genetic relationships may play in the
outcomes for the surrogate, commissioning parents
and child;
� the impact of genetic relationships on the legal
parentage of the child; and
� any other relevant matters.
7. Should at least one of the commissioning parents have a
genetic relationship with the child?
8. Should the surrogate be able to use her gametes or should
she have no genetic relationship to the child?
WHAT LEGAL RIGHTS AND RESPONSIBILITIES
SHOULD BE IMPOSED?
Jurisdictional approaches to the legal rights and
responsibilities of commissioning parents and surrogates
are clearly shaped by principles such as: protecting the
best interests of the child; minimising intrusion into
people’s private lives; promoting the parties’ health and
wellbeing; and preventing and minimising conflict. Again,
consideration of legal rights and responsibilities should
take into account not just the benefits or outcomes sought
but the possibility for monitoring and enforcement and the
consequences for the parties.
Current and proposed legal rights and responsibilities of
parties to a surrogacy arrangement in Australia are
summarised below under the following categories:
� access to ART services and the transfer of legal
parentage;
� reasonable expenses for surrogates;
� monitoring and enforceability of surrogacy
agreements; and
� access to advertising and brokerage services.
Access to ART services and the transfer of legal
parentage
The criteria below shape the rights and responsibilities for
parties in accessing ART services and/or seeking to
transfer legal parentage in other Australian jurisdictions.
As will be seen, there are some differences between
jurisdictions in terms of whether or not the criteria should
apply at both points of regulation.
(i) Fertility and health status:
In Victoria, SA and WA, it is proposed that a prospective
surrogate should be eligible for ART services irrespective
of her fertility status if she has agreed to bear a child for a
commissioning parent who is eligible for such
assistance. This is important because the current
legislation governing ART in these jurisdictions effectively
precludes parties from accessing ART services. Their only
choice is to travel interstate to NSW or the ACT to access
such services.
The WA Surrogacy Bill 2007 also suggests commissioning
parents should demonstrate eligibility for ART services
(i.e. be medically infertile or at risk of transmitting a
genetic disease) in order to approve the transfer of legal
parentage. The VLRC report recommended that
transferring legal parentage should require, amongst other
criteria, that commissioning parent/s be:
unlikely to become pregnant, be able to carry a
pregnancy or give birth; or a commissioning woman is
likely to place her life or health, or that of the baby , at
risk if she becomes pregnant, carries a pregnancy or
gives birth.
(ii) Pre-conception agreement:
The WA Surrogacy Bill 2007 suggests that surrogacy
arrangements should be agreed pre-conception.56
This
seeks to encourage prior deliberation by the parties to
have a baby through surrogacy. In WA, this is a condition
proposed for the transfer of legal parentage.In the
Queensland context, a requirement for a pre-conception
agreement may be useful in differentiating surrogacy from
private adoption. The regulatory challenge appears to be
where a surrogacy arrangement does not rely on access
to ART services.
(iii) Genetic contribution:
The ACT requires that transfer of legal parentage only
occurs where at least one of the commissioning parents
has a genetic contribution and the surrogate mother has
none. This encourages parties to surrogacy
arrangements to access ART services and meet specific
criteria provided in the Parentage Act 2004. This is not a
requirement proposed in Victoria or WA. Victoria and WA
do not propose that commissioning parents should have a
genetic contribution to access ART or transfer legal
parentage.
(iv) Age:
It is commonly held that commissioning parents and
surrogates should be at least 18 years old. As noted, the
VLRC report went further and suggested that the
surrogate mother should be at least 25 years of age to
access ART services and to transfer legal parentage.59
Some clinics offering gestational surrogacy services have
also imposed upper age limits for the commissioning (and
genetic) parents (38 years) and the surrogate (40 years).
(v) Demonstration of informed consent:
The NHMRC guidelines for ART currently require a clear
understanding of the ethical, social and legal implications
and counselling to consider the psychosocial significance
for the parties and potential child before enabling a
surrogacy arrangement to proceed.
The SA committee suggested mandatory counselling
according to relevant NHMRC and Australian and New
Zealand Infertility Counsellors Association guidelines in
order to access ART. Similarly, the VLRC report
proposed clearance from a clinical ethics committee
based on a counselling report and acknowledgement from
all parties that they have received all the required
information and advice prior to accessing ART services. It
also specified a comprehensive list of issues to be
covered in counselling.
The VLRC also suggested a previous pregnancy may be
relevant to the assessment of informed consent though it
should not be a criterion for becoming a surrogate
parent. Some fertility clinics engaged in gestational
surrogacy require surrogates to have had at least one
child.
For the transfer of legal parentage to be possible:
� the ACT Parentage Act 2004 requires that both
commissioning parents and the surrogate receive
“appropriate counselling and assessment from an
independent counselling service”;
and
� The WA Surrogacy Bill 2007 also recommends
independent legal advice in such a case.
The VLRC report, however, did not propose counselling
as a requirement for the transfer of legal parentage. A
requirement for counselling only applied in relation to
access to ART.
(vi) Non-discriminatory access:
The VLRC report recommended that people seeking
access to ART or the transfer of legal parentage must not
be discriminated against on the basis of their sexual
orientation, marital status, race or religion.
The SA committee also supported ART and parentage
legislation “consistent with State and Commonwealth antidiscrimination
legislation”.
The WA Surrogacy Bill 2007 permits the transfer of legal
parentage to those commissioning parents eligible for
ART. This includes single women or heterosexual couples
eligible for ART due to medical infertility or possible
transmission of a genetic disease.
The ACT Parentage Act 2004 only permits the transfer of
parentage where parents are couples, but regardless of
sexual orientation.
The application of a similar approach to that proposed in
WA, SA and Victoria could have implications for other
legislation in Queensland. For example, Queensland law
does not recognise same sex couples as the legal parents
of a child.
(vii) Exclusion of people at risk of child abuse:
The VLRC report proposed to exclude both surrogates
and commissioning parents from ART without specific
assessment and approval where they have been
convicted of sexual or violent offences or have a child
protection order. Risk of child abuse is also proposed as
an exclusionary criterion for the transfer of legal parentage
to the commissioning parents in Victoria.
(viii) Residency:
The ACT Parentage Act 2004 requires, and the WA
Surrogacy Bill 2007 proposes, that commissioning parents
and the surrogate should reside in the jurisdiction. This
may be less relevant if a more uniform approach to the
regulation of surrogacy is implemented in Australia.
Specific conditions for the transfer of legal parentage
Across Australia, other specific conditions applied to, or
proposed for, the transfer of legal parentage include:
(i) Approval of surrogate parents:
All jurisdictions in Australia recognise the rights of the
surrogate to legal parentage at birth irrespective of her
genetic connection to the child. They also require prior
approval by the surrogate for a transfer of legal parentage
to take place. In some jurisdictions, it is proposed that the
transfer should also require the approval of the surrogate’s
partner or at least consideration of her partner’s views.
This position reflects a deep concern to prevent the forced
relinquishment of the child.
(i) Living arrangements:
It is a commonly agreed requirement that the child must
be living with the commissioning parents at the time of the
application for a transfer of legal parentage. This is also
an indication of the surrogate’s willingness to relinquish
the child.
Page 10
(ii) Time limit:
The WA Surrogacy Bill 2007 proposes that an application
for transfer of legal parentage should be lodged no earlier
than 28 days and no longer than six months after the
birth.78 This was also the position of the VLRC. The ACT
has a slight difference with a minimum of six weeks after
birth required for receipt of applications. The minimum
time period is intended to ensure that the birth mother has
time, after the intensity of the birth experience, to reflect
on her surrogacy agreement. The upper limit seeks to
provide certainty to the parties and minimise disruption to
the family.
(iii) Change of child’s name:
WA proposes that commissioning parents will be able to
alter a child’s family name upon transfer of legal
parentage.
This is also provided for in current ACT law.
(iv) Development of a suitable ‘approval plan’:
The WA Surrogacy Bill 2007 also requires an approval
plan which includes details of:
� any time that the child is to spend, or communication
that the child is to have, with the child’s birth parents
or any other person; and
� any information that any of the parties are to provide
to the other or to any other person.
Reasonable expenses for surrogates
While a surrogate should not materially benefit from her
role in an altruistic surrogacy arrangement, it may be
unreasonable to expect her to lose money through the
expenses associated with the pregnancy and birth.
However, it may be difficult to determine the limit of those
expenses, without the arrangement becoming a
commercial one. Such expenses might include:
� out of pocket heath costs associated with conception,
pregnancy and birth, including health insurance;
� any costs associated with assessment and expert
advice such as counselling and legal advice; and
� income protection, disability and life insurance and
lost earnings.
Monitoring and enforceability of surrogacy agreements
Surrogacy agreements are not legally binding on parties in
any Australian jurisdiction. Once again, this reflects the
commonly held presumption that the birth mother has the
right to keep the child irrespective of her intent in any prior
agreement. A surrogacy contract cannot be enforced the
same way as a commercial contract as children are not
commodities to be bought or sold.
In recent reviews there has been some discussion that
surrogates should be able to enforce the part of the
agreement relating to payment of agreed ‘reasonable’
expenses.
Access to advertising and brokerage services
Advertising and brokerage services can facilitate the
bringing together of prospective parties to a surrogacy
arrangement. In Queensland, the Surrogate Parenthood
Act 1988 prohibits advertising and brokerage
arrangements. The WA Surrogacy Bill 2007 proposes that
such activities are permissible as long as they are not for
financial reward. In contrast, the ACT Parentage Act
2004 prohibits both the brokering and advertising for
surrogacy arrangements.
Issues for comment:
9. What legal rights and responsibilities should be imposed
upon the commissioning parent/s and/or surrogate?
If relevant, it would be helpful to detail your comments in
relation to the following:
� conditions for access to assisted reproductive
technology;
� conditions for transfer of legal parentage;
� reasonable expenses for surrogates;
� monitoring and enforceability of surrogacy
agreements; and
� access to advertising and brokerage services.
10. Should the definition of altruistic surrogacy only include preconception
agreements in Queensland?
11. If infertility and/or health risk to the mother or child is a
criterion for surrogacy, how should these criteria be defined?
12. How well does the transfer of legal parentage in a
surrogacy arrangement fit with contemporary approaches
in family law and adoption?
13. How important is it for there to be a mechanism for the
transfer of legal parentage that is specific to surrogacy
arrangements? What would this be?
14. What are the consequences for children born of a
surrogacy arrangement in Queensland of maintaining the
status quo?
15. Should the surrogate’s rights to be automatically recorded
as the child’s parent on the birth certificate and to approve
legal transfer after birth remain if she has no genetic
connection to the child?
WHAT RIGHTS SHOULD A CHILD HAVE TO ACCESS
INFORMATION?
Universally, consideration of the ‘best interests of the
child’ includes a child’s right to access information in
relation to his/her genetic origins and the circumstances of
his/her birth. Article 8 of the United Nations Convention
on the Rights of the Child provides that a child has the
right to:
…preserve his or her identity, including nationality,
name and family relations as recognized by law”; and
that:
Where a child is illegally deprived of some or all of the
elements of his or her identity, ..[states].. shall provide
appropriate assistance and protection, with a view to
re-establishing speedily his or her identity.
Information needs in surrogacy
Depending on the eligibility criteria for commissioning
parents and surrogates, a child born of a surrogacy
arrangement may have no genetic relationship with his/her
commissioning parents. In this case, he/she could be
seeking access to information in relation to:
� donors;
� his/her genetic siblings; and
� his/her birth mother and her partner.
The committee has been asked to consider the rights a
child born through an altruistic surrogacy arrangement
should have to access information relating to his or her
genetic parentage and where this information should be
held.
Birth certificates
The ACT, SA, WA and Victoria have given careful
consideration to the need to preserve information in
relation to a child’s birth parents as part of the process of
recording the transfer of legal parentage. One of the
arguments in favour of maintaining the birth parents’
presumption of parentage is that it creates a record of a
child’s birth circumstances. The favoured approach in
these jurisdictions is for:
� a long form birth certificate recording both the birth
parents’ and commissioning parents’ details; and
� a short form birth certificate recording only the
commissioning parents’ details. This is considered a
practical option to protect the privacy of both the child
and the other parties.
There is a precedent in Queensland for this approach in
the current arrangements for recording amendments to
birth certificates with respect to adoption.
In all Australian jurisdictions, the relevant Registrar of
Births, Deaths and Marriages is responsible for recording,
updating and releasing birth certificates. A child born from
a surrogacy arrangement could be expected to access
his/her birth certificate at 18 years of age or earlier with
the permission of his/her parents.
Queensland adoption process
When a child is adopted, the child assumes the surname
of their adoptive parents and an amended birth certificate
is issued. The birth certificate records the adoptive parents
as the child’s mother and father.88
The child’s new birth certificate can be purchased by the
adoptive parents from the Registry of Birth, Deaths and
Marriages. The certificate is evidence of their legal
parentage of the child.
The Department of Child Safety holds adoption orders and
details of the parties in an adoption register. Once an
adopted child is 18 years, the Adoption of Children Act
1964 provides that the department may:
� release to birth parents and adopted children the full
name of the child and the child’s adoptive parents at
the date of adoption;
� release the full names and dates of birth parents at
the time of adoption; and/or
� authorise access to the child’s original birth certificate
and amended birth entry through the Registry of
Births, Deaths and Marriages.
Access to donor information
In Queensland, a child’s right to access information about
donors is currently addressed by an NHMRC guideline,
which requires fertility clinics to “Uphold the right to
knowledge of genetic parents and siblings”. Under this
guideline, a person cannot become a donor unless they
consent to the release of identifying information to children
conceived using their genetic material.
Clinics must collect the following information from donors:
� name, previous name (if any), date of birth, and most
recent address;
� details of past medical history, family history, genetic
test results; and
� physical characteristics.
In turn, clinics must advise donors that they are ethically
responsible to keep the clinic updated with any changes to
their details.
At 18 years of age, a child born of ART procedures, is
entitled to:
� all information regarding their medical and family
history;
� identifying information about the donor and the
number and sex of other persons conceived using
genetic material from the same donor, the number of
families involved and any information that siblings
have consented to release.
NHMRC guidelines require that fertility clinics store the
information relating to ART procedures indefinitely. This
includes the full names and contact details of all
participants and the names of children born of ART
procedures.
Responsibility of commissioning parents to communicate
with children
There is also recognition of the need to encourage and
support commissioning parents and surrogates to inform
children of their genetic origins and the circumstances of
their birth.
NHMRC guidelines require fertility clinics to encourage
commissioning parents and recipients of donor material to
tell their children about their origins.
The VLRC also suggested that this should be canvassed
as part of initial counselling and there should be ongoing
counselling and support to assist with this process.
As noted, WA proposes that a court-endorsed ‘approval
plan’ be considered as a condition of the transfer of legal
parentage. It is proposed that this plan would detail
parents’ commitment to provide the child with information
about the child’s parentage as he/she develops.Issues for comment:
16. What rights should a child born through an altruistic
surrogacy arrangement have to access information relating
his or her genetic parentage? Who should hold this
information?
OTHER MATTERS
The committee would welcome information or advice on
any other matters considered relevant to this investigation.
Issues for comment:
17. What, if any, other matters should be considered in the
regulation of this issue?
Linda Lavarch MP
Chair
