More from the Queensland Surrogacy Review
I was interested in this passage from the Queensland Altruistic Surrogacy Review:
As noted, Queensland is the only Australian jurisdiction where altruistic
surrogacy is a criminal offence with the maximum penalty $7,500 or three years
jail. Under the Queensland Criminal Code, surrogacy matters are classified as
simple offences, which mean they are dealt with by the Magistrates Court.
A review of five reported prosecutions indicates none of the individuals
charged under the Surrogate Parenthood Act 1988 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. 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 1988.
Other Australian jurisdictions
Whilst the laws in all Australian jurisdictions
prohibit commercial surrogacy, altruistic surrogacy is not considered an offence
in any other Australian jurisdictions apart from Queensland. However, only NSW
and the ACT currently have altruistic surrogacy occurring through fertility
clinics. In Victoria, South Australia and Western Australia, ART legislation
requires that the birth mother be infertile to access ART. In Tasmania, it is
illegal for professionals to assist in an altruistic surrogacy arrangement. This
means that, whilst legally permissible, in these states, surrogacy can only be
pursued by travelling interstate or overseas to access fertility clinics or by
undertaking traditional surrogacy without medical assistance. In the latter
case, the birth mother contributes her egg and she conceives by natural means or
by self insemination. …
Comprehensive surrogacy legislation has now been presented and debated in
Western Australia, South Australia and Victoria. The proposed reforms seek to
address the issue of access to ART for purposes of altruistic surrogacy as a way
of addressing risks to the child and mitigating potential harm including health
risks to the parties. They also seek to provide legal certainty for the child as
well as the intending parents and birth parents.
The ACT is currently the Australian jurisdiction with the most
comprehensive legislative framework for the regulation of altruistic surrogacy.
The Parentage Act 2004 (ACT) provides for what it terms “substitute parent
agreements”. Apart from prohibiting commercial surrogacy, the Act prohibits
advertising and brokerage in altruistic surrogacy. It has a specific provision
to transfer legal parentage for altruistic surrogacy provided certain conditions
are met including a requirement that the parties have used ART.
The ACT legislation reflects a philosophy of harm minimisation and
equity in legal protection for families created through surrogacy. Regulation of
ART in the ACT is currently based on industry standards known as the RTAC code
of practice and National Health and Medical Research Council (NHMRC)
In NSW, the Assisted Reproductive Technology Act 2007 governs
altruistic surrogacy in a limited way by ensuring that surrogacy arrangements
are unenforceable. NSW also relies on the RTAC code of practice and NHMRC
guidelines for the regulation of surrogacy arrangements. Sydney IVF has provided
altruistic surrogacy services over the last decade under this regulatory
arrangement. Unlike the ACT, there is no specific provision in NSW for the
transfer of legal parentage for altruistic surrogacy. This is one of the matters
under consideration in the NSW Legislative Council’s inquiry.
Altruistic surrogacy is permitted in countries such as New Zealand,
Canada, the United Kingdom (UK), Netherlands and Belgium and parts of the United
States (US). It is not permitted in some European countries such as Germany and
France, although it is currently a matter undergoing review in the French
I recall many years ago advising a woman who had acted as a surrogate. I was shocked. I looked at her and stammered something like: “But, but that’s illegal!” ; to which she replied along the lines of “so – I wanted to help these people, and now I have decided to keep the baby”.