Bligh announces altruistic surrogacy to include same sex couples
The Qld Premier announced today that a bill will soon be presented to allow altruistic surrogacy in Queensland, removing the most regressive laws in the country.
The proposed laws will include same sex couples. Unlike her earlier view that ALP members would have to vote with the party line, I understand that the Premier has announced that ALP members will be allowed a conscience vote.
The Opposition has announced that it wants the Bill split- one version for heterosexual couples (which it supports) and the other for homosexual couples (which it opposes). The Opposition believes that it would have the numbers to defeat the measures.
Anna Bligh has stated that lesbian couples will both be allowed to be shown on the birth certificates as parents, but that commercial surrogacy will remain illegal. Currently it is illegal for surrogacy in any form whether in Queensland, or entered into by a Queensland resident anywhere in the world. Whether this remains the model for outlawing commercial surrogacy remains to be seen: the devil is in the detail.
Here are the Ministerial statements to the House by the Premier Anna Bligh and Attorney-General Cameron Dick:
Hon. AM BLIGH (South Brisbane—ALP) (Premier and Minister for the Arts) (10.07 am):
Members may recall that earlier this year I announced that my government would decriminalise an
antiquated law that prevents Queenslanders who want to have children from seeking the help of a
surrogate mother. We will do this because each and every Queenslander who wants to become a parent
should be allowed the opportunity to do so. We will do this because anyone who is unable to conceive a
baby but who wants to become a parent should know the joy of bringing a child into the world, providing
them with life lessons, shaping their future and guiding them into adulthood. We will do this on an
across-the-board basis, not shying away from the difficult and controversial choices.
Today I can advise the House that same-sex parents will be included among those who will be
affected by the decriminalisation of surrogacy because everyone, regardless of their sexual status or
their gender, should be afforded the privileges of parenthood. Throughout Queensland there are literally
hundreds of people who want nothing more than to become parents, but for a multitude of reasons they
are unable to conceive. By decriminalising altruistic surrogacy in this state, which is where an
agreement is reached with a woman to bear a child for another person for no financial gain or profit, we
offer those people fresh hope.
Later this morning the Attorney-General will outline for the House precisely how altruistic
surrogacy will work for prospective parents, but I can now outline in some detail how Queensland’s
model for legal surrogacy arrangements will operate. The legislative framework for altruistic surrogacy
will aim to achieve a balance between helping childless Queenslanders to become parents and
protecting the rights and interests of the child. Queensland remains the only state in Australia where
altruistic surrogacy is still a criminal offence. It leaves many people with limited options for starting a
family. In decriminalising surrogacy, the government had to consider the question of the legal status of
children born in these circumstances. My government’s legislative model for surrogacy will establish a
mechanism for the transfer of legal parentage that will mean that intending parents will be able to apply
to a court to transfer the legal parentage of a child from the birth mother to themselves.
Any Queenslanders will be able to enter into a surrogacy arrangement and people will be able to
utilise any of the various methods for conception, such as in-vitro fertilisation, artificial insemination and
self-insemination as well as natural conception. There will be no requirement for any of the parties to
have a genetic connection to the child or with each other, although in a number of arrangements it is
possible that that may be the case.
A District Court judge sitting in the Children’s Court will be given the authority to transfer legal
parentage, ensuring that children born in these circumstances will not be legally or socially
disadvantaged. We want every child to enjoy the same status and legal protection irrespective of the
circumstances of their birth or the status of his or her parents. At the end of the day, we simply want
every child to be raised in a nurturing and supportive environment. Once a court has made an order to
transfer the legal parentage of the child, intending parents will be able to lodge the order with the
Registry of Births, Deaths and Marriages so they can be recorded on the child’s birth certificate.
In October last year, the parliamentary Investigation into Altruistic Surrogacy Committee tabled its
report entitled Investigation into the decriminalisation and regulation of altruistic surrogacy in
Queensland, which made the significant and important recommendation that a review be carried out of
the legal status of the children of same-sex parents born in circumstances other than surrogacy
arrangements. This recommendation made particular reference to the operation of the Status of
Children Act, which states that, when a fertilisation procedure is used and where the birth mother is
married, her husband or de facto partner is automatically assumed to be the father of the child,
regardless of whether he is indeed the biological parent.
The review that was recommended by the parliamentary committee has been carried out by the
Department of Justice and Attorney-General and it identifies the important need to consider the issue of
same-sex parenting more broadly. I table the research paper as well as the paper that outlines the
Queensland government model for the decriminalisation of altruistic surrogacy.
Tabled paper: Review of the Legal Status of Children being cared for by Same-Sex Parents, August 2009.
Tabled paper: Queensland Government Model for the Decriminalisation of Altruistic Surrogacy and the Transfer of Legal
Parentage, August 2009.
The core issue outlined in that review is that female same-sex couples may become parents
without a surrogate—through artificial insemination or IVF—and it is important to give some legal
certainty to children born in those circumstances. Therefore, the government will also amend the Status
of Children Act to provide that where two women decide to have a child together both mothers are
legally recognised as the child’s parents and can be listed on the child’s birth certificate.
By decriminalising altruistic surrogacy we will bring Queensland into line with other states, and we
will no longer be the only jurisdiction in Australia where such arrangements could land a person in jail.
This brings Queensland into line with Victoria, Western Australia and the ACT, where governments have
also legislated to allow for a court to make an order for the transfer of parentage of the child to the
Importantly, this decision continues the determination of my government to modernise
Queensland—to ensure that our laws, our policies and our programs reflect the reality of modern life. In
this case the reality is that modern medical technology has made pregnancy and birth possible in
circumstances never previously imagined, particularly by our legal statutes.
The government’s model includes a range of safeguards to protect the interests of all parties but
most importantly the rights and interests of the child. This framework will ensure that Queenslanders
who enter into an altruistic surrogacy arrangement will be a legitimate family in the eyes of the law.
I stress that commercial surrogacy—that is, surrogacy done for profit—will continue to be illegal
and no financial gain will be permitted other than reimbursement to the birth mother for reasonable
hospital, medical and other associated expenses. Similarly, advertising for surrogacy births will also
remain prohibited. It is the government’s intention to bring this legislation into the parliament by the end
of this year. These new laws will offer those Queenslanders unable to conceive a new optimism and the
recognition needed to protect the legal rights of all children, regardless of the status or sexual
preference of their parents.
Hon. CR DICK (Greenslopes—ALP) (Attorney-General and Minister for Industrial Relations)
(10.13 am): The release by the Premier today of the Queensland model for the decriminalisation of
altruistic surrogacy and the transfer of legal parentage heralds a new era for many Queensland couples.
The fulfilment of our commitment to these important reforms means that many people who once only
ever had the dream of being able to start a family will now be able to make that dream a reality.
Furthermore, the proposed changes to the legal status of children being cared for by same-sex
parents will ensure that same-sex parents and their children are afforded the same legal entitlements as
any other family. These announcements represent significant law reform for our state, and I am very
pleased to outline for the House the details of the model we are proposing.
The Queensland model for the decriminalisation of altruistic surrogacy and the transfer of legal
parentage is underpinned by the fundamental guiding principle that the best interests of the child should
always remain paramount. Once a child is born through a surrogacy arrangement, the Queensland
model will allow court ordered legal transfer of parentage to the intending parents to ensure that the
people who seek to raise the child can be recognised at law as the child’s parents.
To permit the transfer of parentage to intending parents, however, a number of requirements will
need to be satisfied. Under our model, surrogacy arrangements will have to be in writing, and the
arrangement must be made prior to the child’s conception. The birth mother, her partner—if there is one
involved—and the intending parent or parents will all have to freely consent to the arrangement and
must have the capacity to do so. Any payment, reward or other material benefit to either party to the
arrangement will be prohibited and will be punishable by criminal penalty. These and other specific
safeguards aim to ensure that the best interests of the child are upheld before the transfer of parentage
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occurs. And, at the end of the day, if a birth mother chooses not to relinquish that child when it is born,
she will not be able to be forced to do so.
Certain safeguards will also be built into the court process for the transfer of parentage to protect
the rights and interests of the child and ensure that the parties understand the social, psychological and
legal implications of the surrogacy. These include: a requirement for all parties to seek independent
counselling and provide the counsellor’s report to the court; a requirement for all parties to obtain
separate independent legal advice about the implications of the surrogacy before they enter into the
surrogacy arrangement; the court must be satisfied that there is an established medical or social need
for the surrogacy; the child must have lived with the intending parents for at least 28 consecutive days
prior to the application for transfer of legal parentage being made; the birth mother and the intending
parent or parents must be at least 25 years of age at the time; and the application cannot be made after
the child is six months old. If the court is satisfied that these requirements have been met, an order to
transfer parentage can be made and a new birth certificate issued listing the intending parent or parents.
Surrogacy arrangements and the transfer of parentage are complex issues. We want to ensure
that the best outcome for the child is achieved. That is why we have developed a model that will provide
protection for children. It is a model that will help childless Queenslanders who long for the opportunity
to raise children in a loving family environment to do so. And it will ensure that no child is socially or
legally disadvantaged, regardless of their personal circumstances or those of their parents.