Criminal checks in SA surrogacy won’t advance matters further

Currently the South Australian Parliament is debating the Surrogacy Bill- which if passed will be standalone legislation covering surrogacy, largely on the model seen in Queensland and New South Wales. I support the Bill. I have been closely engaged with developments in South Australia concerning surrogacy over several years- making submissions direct to politicians and to two reviews undertaken by the South Australian Law Reform Institute.

Yesterday a Liberal backbencher, Paula Luethen,  argued that there should be criminal history checks of intended parents, a step rejected by the Attorney-General Vickie Chapman.  The Advertiser reported:

“However, she wants potential parents seeking a surrogate to undergo a criminal-history check before entering a surrogacy agreement “to eliminate the risk that intended parents have been convicted of any serious offences”.

Ms Luethen was particularly concerned about people who may seek surrogacy as a way to exploit children or perpetrating child sexual abuse.

But Ms Chapman said she believed the check would only give “the appearance of a safeguard” because those involved could “disregard the results of the check and proceed with the surrogacy anyway”.

“It is also arguably discriminatory as it is not a requirement for any other reproductive treatment in SA,” she said.”

I agree with the Attorney-General.

When NSW considered criminal history checks last year its surrogacy review said:

“The only Australian jurisdiction to require criminal record and child protection checks in surrogacy is Victoria. However, this requirement applies to all ART, not just surrogacy involving ART. The  requirements in Victoria have been controversial, and criticised as discriminatory and insulting. …The Review does not recommend implementing criminal record checks for prospective surrogate parents at this time. The [Surrogacy] Act provides a mechanism for transferring legal parentage in respect of altruistic surrogacy arrangements. These arrangements often occur between family members or close friends and there is little evidence to suggest that such arrangements are not in good faith. The requirement may merely cause unwarranted inconvenience, expense and distress for those seeking to use altruistic surrogacy for genuine purposes.

Additionally, the ‘Baby Gammy case’ involved an international commercial surrogacy arrangement, which is illegal for NSW residents. Therefore, implementing a requirement for criminal record checks in domestic arrangements would not necessarily prevent similar situations occuring in the future.” [bold added]

I agree. Criminal history checks are really redundant in South Australia. There are protections in place already:

1. Commercial surrogacy in SA will be illegal under the Bill. In Baby Gammy, a case involving surrogacy in Thailand- the surrogate improperly put her age up, Mr Farnell did not say that he was a convicted paedophile, there was no or very little if any legal advice before the surrogacy proceeded and no counselling. What checks were done by the clinic seemed scant, at best. It was a disaster waiting to unfold- as indeed it did. The doctor in that case was the same doctor who allowed a Japanese man to have 16 children by various surrogates- all at the same time!
2. Before intended parents can proceed with surrogacy, they must undertake mandatory counselling. The Australia and New Zealand Infertility Counsellors Association (ANZICA) says this about the counselling: “During the pre-surrogacy assessment stage, the impact on children, including those of the surrogate, should be considered as part of the overall assessment and in some jurisdictions it is a mandatory requirement that children be seen as part of the counselling. Whilst pre-surrogacy counselling addresses many of the issues which may have been raised in counselling by a clinic counsellor the primary purpose of an independent counsellor is to provide the treating clinic with an objective, succinct, accurate description of the emotional and psychological preparedness of the participants to the proposed surrogacy arrangement. It is not an opportunity for on-going supportive counselling, crisis counselling or psychotherapPre-surrogacy counselling requires a formal structured counselling process to gather and assess relevant information about the functioning and motivation of all involved in the proposed surrogacy. This includes structured clinical interviews of all involved (as individuals, as couples and as a group) and may include the use of an objective measure of psychopathology as part of the psychosocial screening process. In some jurisdictions there is a legislated requirement for the independent counsellor to give their written opinion as to the suitability of the parties to participate in a surrogacy arrangement.”
3. It is the usual practice in those reports for the counsellors to raise whether there has been any domestic violence, child protection or criminal history. The relevance of each of these (if it arises) can then be dealt with.
4. Before the recognised surrogacy agreement is signed, there is and will be a requirement for each side to obtain independent legal advice. Two matters that are necessary to be considered in SA are whether the matter is one that if a child is born a judge is likely to make an order transferring parentage, and issues to do with the clinic.
5. In working out whether a judge is likely to make an order, good practice is to ask clients whether there is any domestic violence, child protection or criminal history. If so, is it relevant? For example, a conviction many years of shoplifting may hardly be relevant. A long criminal history involving assaults, including sexual assaults, would raise alarm. The lawyer has ethical duties to bring matters to the attention of the court. The court may well be reluctant to transfer parentage in cases involving obvious risk- and may be prepared to refer to child protection authorities. The Bill makes plain that any order transferring parentage revokes any child protection order- so it is absolutely essential for this issue to be discussed from the beginning.
6. The legislation makes plain that a judge has a discretion to make an order- may make an order. Judges don’t act as rubber stamps. If judges have child protection concerns, they can decline to make an order. The court has to be satisfied that the making of the order is in the best interests of the child and that the intended parents are “fit and proper to assume the role of parent of the child.” The court can require any of the parties to undertake an assessment before it makes its orders. The court can also require separate representation of the child. The Bill gives the judge wide latitude to get to the truth and “must act according to equity, good conscience and the substantial merits of the case”.
7. The lawyer in advising the clients at the beginning also must be aware of section 4A of the Assisted Reproductive Treatment Act 1988 as to how any clinic might handle the case: “The welfare of any child to be born as a consequence of the provision of assisted reproductive treatment in accordance with this Act must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of this Act.”
8. While not in the legislation, IVF clinics do not rubberstamp the process either. They  ensure that the surrogacy agreement is also approved by their ethics committee before they undertake treatment. If there are any issues of domestic violence, child protection and criminality, the clinics want to know so that they can make a proper assessment of risk, in light of their obligations under SA legislation, including s.4A of the ART Act, and under the National Health and Medical Research Council Ethical Guidelines. The Guidelines, which in effect are licensing requirements for the clinics,  make plain: “Clinics must not facilitate ART treatment under a surrogacy arrangement if there are concerns about whether the arrangement is ethical and/or legal.”

The simple story is that undertaking a domestic surrogacy journey, like that proposed in SA under the Surrogacy Bill, is full of hurdles. Each must be cleared. It is not for the fainthearted. As the NSW review said, criminal checks are likely to impact badly on surrogacy arrangements between friends and family, and not provide added protection that already exists- either by statute or in practice.