How Queensland’s proposed surrogacy changes breach Australia’s human rights obligations

I have been asked to set out how the proposed changes to Queensland’s Surrogacy Act 2010 will breach Australia’s human rights obligations. When looking at the treaties below, it appears that the proposed changes breach Australia’s obligations under:

• the International Convention on the Rights of the Child
• the Universal Declaration on Human Rights
• the International Covenant on Civil and Political Rights
• the International Covenant on Economic, Social and Cultural Rights
• the International Convention for the Elimination of all forms of Discrimination Against Women

Australia has signed a number of human rights treaties. Signing the treaties is Australia saying to the rest of the world that it is prepared to be bound by the treaties. However, signing the treaties is not the same as saying the obligations under the treaties are part of Australian law. That only happens when laws are passed enacting the obligations under the treaty.

As was seen in the case of Nick Toonen, even if the law of a State is discriminatory, if it is in breach of Australia’s fundamental human rights obligations it can be overturned. Mr Toonen was the manager of the Tasmanian AIDS Council. He complained to the United Nations Human Rights Committee about Tasmania’s anti-sodomy laws which, he said, impacted on his right to privacy and were in breach of Australia’s fundamental human rights obligations. Mr Toonen was successful, resulting in the passage by the Keating government of the Human Rights (Sexual Conduct) Act 1994, which provides:

Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

A reminder…

 The proposal by the Queensland government is to:

• make it a criminal offence, punishable by up to 3 years imprisonment,  for intended parents who are gay, lesbian, single or in a de facto relationship of less than 2 years to enter into or offer to enter into an altruistic surrogacy arrangement
• alone of all Australian governments, to remove the recognition of lesbian co-mothers as parents.

Relevant treaties

International Convention on the Rights of the Child

Breach of Article 2.2

Article 2.2 provides:

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.  (emphasis added)

One might think that if the laws are passed banning these surrogacies that they will therefore stop. Aside from  any issue to do with IVF clinics, it is clear that a belief that such surrogacies will not happen is foolish, and contrary to evidence.

In essence, there are two medical forms of surrogacy: traditional and gestational. Traditional means that the surrogate is the genetic mother of the child. In other words, she can be impregnated at home, using a turkey baster or syringe. Doctors are not required. Gestational means that there is not genetic link by the surrogate with the child- she gestates the child, without the genetic link. This form necessarily involves medical intervention. It is likely, in light of what has happened in Queensland in the past, that traditional surrogacies will continue, legal or not.

Before the enactment of the Surrogacy Act 2010, an all party committee chaired by former Attorney-General Linda Lavarch inquired into altruistic surrogacy in Queensland. It concluded:

The committee has concluded that whilst prohibition may have dissuaded some, it has not prevented altruistic surrogacy occurring in Queensland … To promote the best interests of the child, the committee wants to ensure that children born of altruistic surrogacy are not stigmatised by the manner of the conception and not disadvantaged by the lack of legal recognition of their intending parents, for example, in terms of child support or inheritance.  The committee’s proposal for a specific mechanism to enable the transfer of legal parentage is an expression of this principle.
 

From 1988 to 2010 Queensland’s law governing surrogacy was the Surrogate Parenthood Act 1988. It criminalised all forms of surrogacy, in Queensland or out of Queensland, but as the committee concluded, surrogacy nevertheless happened. Given that doctors did not provide IVF for gestational surrogacy, the only form of surrogacy that could happen was traditional.

The case of Re Evelyn was the nightmare case of a traditional surrogacy gone wrong, ending up in a devastating Family Court case. The significance of Re Evelyn was that at the time the child was conceived, using a Queensland father’s sperm and a South Australian mother’s egg, surrogacy was illegal in both South Australia and Queensland, but nevertheless happened, and as far as I am aware, no one was prosecuted.

Therefore, the evidence demonstrates that children will continue to be conceived via traditional surrogacy, and no doubt in breach of   the proposed provisions. Those children will never be able to call their parents as their parents as a matter of law. This is because the illegal surrogacy will not enable a parentage order to be made. Nor can an adoption order be made (both because it would be approving of an illegal act, and also because the Adoption Act 2009 (Qld) specifically discriminates against same sex couples and singles), and nor does a Family Court order denote parentage.

For those children born to those arrangements, their parents will as a matter of law be the surrogate, and if she has a husband or a male partner, that husband or male partner, not the intended parents. This is due to the effect of presumptions under the Status of Children Act 1978 (Qld).

Therefore:

1. Children will be born to intended parents where the surrogate and her partner, not the intended parents will be recognised at law as the parents.
2. The intended parents will not be the parents of the children as a matter of law.
3. The reason that the intended parents will not be recognised is because of either their sexuality or because of their relationship status (not married, or single) or both.
4. this would amount to discrimination against the children in breach of Article 2.2.

Breach of Article 3.1

Article 3.1 provides:

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.   (emphasis added)

The proposals, by not recognising the intended parents,resulting in discrimination against children, is clearly not in the best interests of children, and are therefore in breach of Article 3.1. What impact can there be on a child who knows and loves their parents, to be reminded regularly that their parents are not recognised by the State, and that therefore there is something wrong with the child? This is a return to legitimate and illegitimate children, a distinction removed in 1978 because of the adverse stigma on children with the passage by the Bjelke-Petersen government of the Status of Children Act.

Breach of Article 6.2

Article 6.2 provides: 

States Parties shall ensure to the maximum extent possible the survival and development of the child.

The child may well suffer significant psychological problems by not being able to properly identify and name his or her parents, a situation that neither the child nor the child’s parents can fix.

Breach of Article 7.1

Article 7.1 provides:

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 

The child will be left knowing that his or her parents are as a matter of law someone else entirely, and that he or she can do nothing to fix it.

Possible breach of Article 8.1

Article 8.1 provides: 

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

It is arguable that the failure to allow the child to recognise the intended parents as his or her parents, either through a process of surrogacy or adoption means that the child’s identity is not able to be preserved.

Universal Declaration of Human Rights

The Universal Declaration was adopted by the United Nations General Assembly in 1948. Australia’s then External Affairs Minister (and former High Court judge) “Doc” Evatt played a key role in the process leading up to the adoption of the declaration.

Breach of Article 1

Article 1 speaks for itself:

All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Article 2 provides:

 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. (emphasis added)

Breach of Article 7:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

International Covenant on Civil and Political Rights

The Covenant follows on from the Universal Declaration of Human Rights, and entered into force in Australia in 1980, and in respect of Article 41 in 1993.

Article 2.1:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2.3:

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

Article 3:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 24.1:

 Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

It is questionable as to whether this article might have been breached by the proposals.

Without a doubt, the surrogacy proposals would be in breach of Article 26, because those proposals are to restrict access to surrogacy based on sexuality or relationship status:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

International Covenant on Economic, Social and Cultural Rights

Breach of Article10:


The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses….

Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. 

Convention for the Elimination of all forms of Discrimination Against Women

Article 5 provides in part:

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

It is arguable that the proposals are in breach of this Article, because they are based on the model that every child deserves a mother and a father.  The proposals contain customary, stereotypical views of what men and women should do with child rearing, and in particular:

• it is not optimal for single men to raise children alone
• it is not optimal for single women to raise children alone
• it is not optimal for a lesbian couple to raise children alone
• it is not optimal for a gay couple to raise children alone,

but so bad that those people should be banned from seeking surrogacy and be subjected to legal prosecution and imprisonment; as opposed to those in heterosexual relationships who will be able to proceed and obtain parentage orders.

Social science research certainly indicates that the care provided for children by same sex couples is no worse than that provided by heterosexual couples.

Article 16 provides, in part:

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:…

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

It is arguable that the Queensland Government’s proposals:

•  are in breach of the rights of lesbian co-parents to be recognised as “parents” within item (d);
• by virtue of sexuality and relationship status breach item (e) for women who are intended parents, whether as singles, or as part of a lesbian couple.