Paper on Surrogacy

An excellent paper on the history of surrogacy laws in Australia and giving an overview of many of the issues involving surrogacy has recently been delivered by Associate Professor Anita Stuhmcke of the University of Technology Sydney (UTS) as part of the lecture series, UTS Speaks.

To clarify the current Queensland position (only because it imposes criminality)- surrogacy is not only illegal in Queensland, but by virtue of the Surrogate Parenthood Act 1988, if a Queensland resident enters into a surrogacy arrangement anywhere in the world, then the resident commits an offence in Queensland. It is irrelevant as to whether the surrogacy is commercial or altruistic. A Queensland couple who go to California or to NSW for surrogacy both commit an offence in Queensland.

Professor Stuhmcke commends Australian jurisdictions for moving to reform this area of the law, but says quite clearly that they have done so in a piecemeal fashion which ultimately does not do all that is required to deal with the dilemma that is surrogacy.

Here is the paper:

UTS Speaks
Associate Professor Anita Stuhmcke
29 October 2008

Contact: anita.stuhmcke@uts.edu.au
The recent media and legal interest in surrogacy coincides with the 2006 birth of a child
to a Federal Senator – Stephen Conroy – and his wife who was infertile due to ovarian
cancer. The couple travelled from Victoria to engage in IVF surrogacy in NSW due to
the illegality of the procedure under Victorian laws. The procedure involved a donated
egg and a surrogate mother – so four adult parties. This is an example of medical
surrogacy – where IVF a form of assisted reproductive technology is used together with
surrogacy to produce a child.

The birth of the Conroy’s child Isabella highlights the lack of legal protections for
children born as a result of surrogacy arrangements. Under existing law the birth mother
and her partner if she had one, was the only one of the four adults who had legal rights
with respect to Isabella following her birth. The donor relinquished her rights at the time
of embryo creation; Senator Conroy, the biological father could not be recognized legally
and similarly his wife had no legal standing. The Conroy’s returned to Victoria and
applied to the Family Court of Australia for parenting orders 1 which were granted 12
months later in 2007 – Senator Conroy was also granted legal recognition as Isabella’s
father. The estimated cost of this to the Conroy’s was between $40 -50 000. 2

Since 2006 there has been a flurry of legal review. In November 2006 SCAG – the
Standing Committee of Attorneys-General resolved to consider working towards national
uniform legislation to regulate altruistic surrogacy. The terms of reference are:
– commercial surrogacy remain illegal
1
Any person concerned with the care, welfare and development of a child can apply to the Family Court for residence, contact or parental responsibility, this can be done by consent with the birth mother, or in contested proceedings without her consent in the case of a dispute.
2
Tasmanian Legislative Select Committee on Surrogacy, 1 July 2008, Witness Senator Stephen Conroy,
http://www.parliament.tas.gov.au/ctee/Transcripts/1%20July%2008%20-%20Conroy.pdf , 15 October
2008. The financial burden for IVF surrogacy is compounded because the intending parents and birth mother are excluded from Medicare funding.

– altruistic surrogacy arrangements be legal but unenforceable
– informed consent be required from all parties
– there should be mandatory specialist counseling
– court orders should enable the intended parents to be recognized as the legal
parents if all legal prerequisites met and it is in the best interests of the child
Also since 2006 five state jurisdictions have completed or commenced law reform
inquiries into surrogacy – NSW, Tasmania, SA, WA and Queensland – with multiple
recommendations for legal reform being made – some of which echo those of SCAG.
Tonight’s message is that while this current law reform is very much a positive and
welcome step I predict that the practice of surrogacy will remain a recurring legal
dilemma and that the suggested reforms will fail to prevent the dilemma of surrogacy
regulation recurring.

My basis for the argument that the current raft of proposed legal reform will fail is
because it does not:
1. offer a national holistic approach: Australians are entitled to reproductive
equality regardless of where they live, it is doubtful not only that there will be a
national response but also unlikely that the suggested reforms will address all
areas of law which surrogacy impacts – such as provision of donor gametes and
the operation of ART regimes and areas of Commonwealth Law such as
immigration law and payments of family benefits;
and
2. it does not tackle the practical issues presented by this method of family
formation: the focus of law reform remains on the needs of adults and reinforcing
the norms of society instead of being aimed at providing the same legal
protections to children born through surrogacy arrangements as other children.

My talk tonight is therefore divided into two parts:
The first part examines why surrogacy may currently be labeled as a dilemma and
the second part examines why it is a recurring dilemma.
Current legal approach
The practice of surrogacy has a long history – there is a biblical reference to surrogacy in
Genesis; the private diaries of Winston Churchill’s wife Clementine revealed that she
offered to give the couple’s fourth child to Lady Jean Hamilton, a close family friend,
unable to conceive;
3
there are records of a NSW family using the practice since the late
1800s. Surrogacy is also based upon Western cultural assumptions: for example, Torres
Strait Islanders have campaigned over the last twenty years for recognition of their
customary adoption practices which may from a Western perspective be labeled as
surrogacy.
Surrogacy is not the same concept as adoption. In surrogacy arrangements a child is
created with the express intention of giving it up to identified parents. It is this important
difference together with the surrogacy being combined with medical innovations in
assisted reproductive technologies such as IVF which result in surrogacy being a legal
dilemma.
The fact that law is unable to effectively regulate the complexity of surrogacy is reflected
in the existing inconsistencies in national legal regulation. The national regulatory
approach may at best be said to be fragmented and at worst it may be described as
shameful.
3
Szoke H, ‘Surrogacy: All the Features of a Relationship That Could Go Wrong? (2001) 28 Melbourne
Journal of Politics

To illustrate this point let us use the jurisdictions on the north eastern seaboard – NSW,
the ACT and Queensland – as points of comparison.

In NSW if using traditional surrogacy where the surrogate mother uses her egg and the
semen of the intending father – you may advertise for a surrogate and may pay her. In the
ACT you can’t advertise for nor pay a surrogate. In both NSW and the ACT you may be
able to use a private IVF service for a surrogacy arrangement, although it would probably
not be compensable through Medicare and therefore be fully self-funded. Once the child
is born, if you are in the ACT you can apply to have parental status transferred from the
birth mother to the commissioning parents. If you live in NSW you can attempt to apply
for parental orders by consent from the Family Court – but there is no guarantee they will
be granted. On the other hand if you are from Queensland all forms of surrogacy are
illegal and those entering into any of the arrangements just described – including those
who facilitate them such as doctors – may currently be prosecuted and imprisoned.
It is therefore unsurprising that the current legal regulation of surrogacy across Australia
has been described as “medicine by postcode”.
4
Depending upon where you live and
what relationship you are in you may or may not be able to form a family through
medical surrogacy.
There is however one overriding legal certainty
5
– Australian courts will not enforce a
surrogacy arrangement as a contract. If a birth mother decided to keep the child and
refused to give her or him up to the intending parents the issue of custody would be
determined as a family law dispute and the best interests of the child test used to
determine whom the child should be placed with.
In 2008 this legal point may seem obvious and universal, however go back just over
twenty years and the 1985 American courts in the case named Baby M wrestled with this
4
Dr Christine Kirby, Oral evidence to South Australia, Inquiry into Gestational Surrogacy, Social
Development Committee, Report 26, Adelaide, Parliament of South Australia, 2007, 27
5
Although this has not been legally tested in any Australian jurisdiction.

very point. In that case a professional couple Bill and Betsy Stern decided not to risk the
dangers of child bearing when they learnt that Betsy was suffering from multiple
sclerosis – determined to have a ‘child of their own’ they paid Mary Beth Whitehead $10
000 in exchange for the conception and birth of the child – who was genetically, through
artificial insemination, the product of Mary Beth Whitehead and Bill Stern. Four days
after the birth Mary Beth Whitehead disappeared with the baby girl allegedly saying ‘I
signed on an egg. I didn’t sign on a baby girl.’
6
Eventually the Stern’s won custody of
the child but not before the US courts had decided that at first instance the contract
between the Stern’s and Mary Beth was actually valid and enforceable meaning that
because Mrs Whitehead had signed a legal document which stated that upon birth she
would give the child away to the Stern’s that this contract was to be given full effect by
the courts. This finding was rejected ultimately in favour of the legal determination
being made on the equivalent to our best interests of the child test.

Update 20 years and the child born of the agreement, Melissa Stern turned 18 in March
2004 and formally terminated Mary Beth Whitehead’s parental rights and formalized
Elizabeth Stern’s maternity through adoption proceedings. As of March 2007 Melissa
was a junior at George Washington University majoring in religious studies – she hopes
to become a minister – has not ruled out having children of her own and states that it was
strange to study the Baby M Case in her bioethics class at the university.
7
It is important then to note that family law tests and not contractual principles will apply
to any disagreement following the birth of a child through surrogacy. This is the case as
existing specific legal Australian regulation on surrogacy generally focuses upon whether
to allow or disallow commercial surrogacy such as what the Sterns and Mrs Whitehead
engaged in rather than concerning itself with issues such as what happens to the child
after the birth.
6
Deborah L Spar, ‘For love and money: the political economy of commercial surrogacy’ (2005) 12 (2)
Review of International Political Economy at 288
7
‘Now It’s Melissa’s Time’ New Jersey Monthly (2007).

Currently, five Australian jurisdictions have surrogacy legislation: Victoria, South
Australia, Tasmania, Queensland and the Australian Capital Territory.
8
There is no legislation in Western Australia, the Northern Territory and New South Wales
9
resulting in existing arrangements in these jurisdictions being regulated by a hotch–potch of laws not created with surrogacy in mind
10
and also by NHMRC (National Health and Medical Research Council) ethical guidelines and the Reproductive Technology Accreditation Committee (RTAC).
In all Australian jurisdictions there are significant legal similarities:
• A disapproval of commercial arrangements with advertising
• All legislation extends to pre-conception or post conception arrangements
• All surrogacy contracts are void and unenforceable – this is also probably the case
in jurisdictions such as NSW which do not currently have such legislation in force
•
A cultural homogeneity is assumed – for example in Queensland
11
8
Victoria: Infertility Treatment Act 1995 (renders commercial surrogacy an offence)
Queensland: Surrogate Parenthood Act 1988 (arrangements relating to surrogacy illegal and imposes
criminal penalties on all parties)
South Australia: Family Relationships Act 1975 (offence to receive valuable consideration for a surrogacy
arrangement – contracts illegal and void)
Tasmania: Surrogacy Contracts Act 1993 (an offence to make or receive a payment or reward in relation to
a surrogacy arrangement – all surrogacy contracts are void and unenforceable)
ACT: Parentage Act 2004 (refers to a substitute parent agreement, it is an offence to enter into a
commercial agreement but allows a surrogacy arrangement to the extent that the legislation facilitates the
ability of the intending parents to become the legal parents of a child and to be registered as such)
[9
In NSW the Assisted Reproductive Technology Act 2007 has passed both Houses of Parliament but has
not yet been proclaimed. The effect of that Act would be to render surrogacy agreements void; commercial
surrogacy illegal and the actions of third parties who facilitate such agreements illegal.
10
Despite not having legislation in NT and NSW and WA all jurisdictions are covered by the National
Health and Medical Research Council Guidelines on ART together with the Code of Practice for Assisted
Reproductive Technology Units developed by the Reproductive Technology Accreditation Committee.
The guidelines state that it is ‘ethically unacceptable’ to undertake surrogacy for commercial purposes and
that parties should undergo counselling
11
The Torres Strait islander community wants legal recognition of their tradition of altruistic surrogacy and
inter-family adoption – an objective which the Kupai Omasker Working Group has been campaigning for
over 20 years. Eddie Mabo is perhaps the most ‘famous product’ of such traditional adoption
arrangements. ]
• In most Australian jurisdictions the birth mother and her male partner (if any) are
regarded as the legal birth parents of the child
The result of the current regulation for Australians is:
Firstly, jurisdiction shopping.
Secondly, a legal vacuum for intending parents following the birth of the child as the
ACT is the only regime which allows the transfer of legal parentage from a surrogate to
the intending parents via a special purpose legal mechanism by way of Court order.
Thirdly, the uncertain interplay between Commonwealth and state laws particularly with
respect to payments for example:
12
• the baby bonus:
13
decision about eligibility is determined by Centrelink,
eligibility is determined by care for the child but may be split between two
parties. Intending parents who assume actual care immediately after the birth will
have sole claim to the payment.
• Parenting payments:
14
payment is available to principal carers however intending
parents may not be entitled unless they are legally recognized as parents of the
child
• Entry into Australia following surrogate birth overseas: there is no option under
migration provisions for surrogacy they are currently considered under expatriate
provisions which require (amongst other things) that the adoptive parent(s) were
residing overseas for 12 months prior to the adoption for reasons other than to
adopt a child.
12
South Australia, Inquiry into Gestational Surrogacy, Social Development Committee, Report 26,
Adelaide, Parliament of South Australia, 2007, Appendix 2.
13
A New Tax System (Family Assistance) Act 1999 (Cth); A New Tax System (Family Assistance)
(Administration) Act 1999 (Cth).
14
Social Security Act 1991 (Cth).

Most simply the explanation for the fragmented current regulation of surrogacy is due to
the Federal Constitution not specifically allowing federal laws.
Of course the states could hand over control of this area to the Commonwealth or else
echo Commonwealth legislation as has been done with cloning.
15
This to my knowledge
is not a conversation which has happened between the Commonwealth and the States and
the historical record as to state and federal cooperation on surrogacy is also not
promising. Almost twenty years ago now in 1990 the then National Bioethics
Consultative Committee recommended a national approach and found that state-approved
agencies should be introduced nationally to supervise the practice of surrogacy – these
agencies would be required to provide counseling and establish standards of practice for
public accountability of third parties such as social workers and health practitioners.
Agencies would be required to maintain records on children’s origins and legislation was
drafted to determine legal parentage. The NBCC also recommended that:
16
* Surrogacy should not be totally prohibited;
* Surrogacy should not be freely allowed
* Surrogacy practice should be strictly controlled by uniform legislation and
* Uniform legislation should render all surrogacy arrangements unenforceable and
include controlling mechanisms for agencies and advertising controls.
Following this a 1991 joint meeting of the Australian Health and Social Welfare
Ministers agreed to support national legislation to control surrogate motherhood.
As we have seen the Australian legal response that has resulted is far from uniform.
15
This is however clearly not an avenue that the various jurisdictions have been willing to pursue. In 1991
the Australian Health and Social Welfare Ministers recommended a holistic approach to surrogacy through
legislation – the result is the hotch potch we now have.
16
There were two dissents to this view: National Bioethics Consultative Committee, Discussion Paper on
Surrogacy 2 – Implementation, October 1990

Given then that there is unlikely to be national legislation passed it is important to ask
whether it is possible for states to agree on this area of family formation. There are
clearly a number of potent obstacles which go some way to explaining the differential
jurisdictional response.
The most important obstacle is that surrogacy is an ethically and morally divisive practice
– it may be humanized or be sensationalized or demonized – due to the simplicity,
diversity and complexity the practice offers.
This can be highlighted through four judicial decisions – the first three are Australian and
the last is from the US:
The first Application of A and B [2000]:
In New South Wales the birth mother offered to be a surrogate mother for her sister. Her
sister had been married since 1979 and had no children. The birth mother was
inseminated with the sperm of her sister’s husband and gave birth to a child in 1997. The
case concerned an application for an adoption order by the sister and her husband. The
application was not contested. The NSW court approved the adoption order.
17
The second Re Evelyn (1998):
In South Australia Mrs S married with 3 children offered to be a surrogate for her friends
Mr and Mrs Q who lived in Queesland. The child was born in 1996. Mrs S found it
difficult to cope with the relinquishment of the child to Mr and Mrs Q and travelled from
South Australia to Queensland and removed the child from Mr and Mrs Q. Custody was
contested and the final decision was made by the Full Court of the Family Court of
Australia that Mrs S be given custody of the child.
18
The third Re Mark:
17
Bryson J Application of A and B [2000] NSWSC 640
18
Re Evelyn (1998) 23 FamLR 53
In 2002 Mark was born through a commercial surrogacy arrangement in the United States
using a donor egg and the sperm of Mr X. Mr X is in a partnership with Mr Y. Mr X and
Mr Y live in Victoria and applied to the Australian Family Court for parental
responsibility. The Court declared that parental responsibility for Mark vests in Mr. X
and Mr. Y. They alone have the duties, powers, responsibilities and authority which, by
law, parents have in relation to children.
19
The fourth Buzzanca:
In the United States Baby Jaycee was born to the intended parents by a gestational
surrogate using an anonymous egg donor and an anonymous sperm donor. One month
before the expected birth of the child, the intended parents separated and petitioned for
divorce. The intended father argued that he was not liable for support payments as the
child was not the “child of the marriage”. The Court disagreed and found that it was
enough that the Intended Mother had made a sufficient showing that the Intended Father
would be declared the child’s legal father by a court at some future date and therefore
ordered the family law court to determine an appropriate child support order.
20
The case examples reflect the diversity and complexity of surrogacy and show the
difficulty of regulating all the complexities of surrogacy. As we can see these cases are
not unique to Australia – as we speak there is uncertainty over the parentage of a child
born through commercial surrogacy in India
21
who has three mothers – a donor egg; a
birth mother and an intended mother but whose parents divorced during the pregnancy
meaning that Indian laws will now not allow the Japanese father to take the child out of
India.
19
Re Mark: An application relating to parental responsibilities [2003] Fam CA 822
20
Buzzanca v. Buzzanca 61 Cal. App. 4
th
1410; 1998 Cal. App. Lexis 180: 72 Cal. Rptr. 2d 280,
21
Surrogacy costs around $12 000 in India compared to $70 000 in the US (see
http://www.thewip.net/contributors/2008/10/reproductive_tourism_soars_in.html.)

Such cases which sensationalise surrogacy highlight that it is a moral or political or
ethical response to surrogacy which drives the existing legal regulation of surrogacy
across Australia. Surrogacy throws at law the clash of norms:
The assumption that a child has two parents
The assumption that a child should be biologically related
The assumption that heterosexuals should create families
The assumption that nature should predetermine family formation
The assumption that motherhood and fatherhood should not be splintered.
It poses questions society has not previously had to address. In terms of our own moral
compass: would we help out a family member who could not conceive – if we did so
would we expect compensation for lost earnings or a card to thank us – what will happen
to family if we allow people to be paid to bear children? What exactly is the gift
relationship and understanding of engaging in a process of bearing a child for another?
The issue is whether it is the best response to ban a practice because it conflicts with
normative assumptions. Indeed, it has been suggested that in a liberal democracy
governments should not prohibit private activity such as surrogacy arrangements unless
the activity does harm to others.
22
Writing in 2006 an Australian academic author in this
area, Willmott states “Despite speculation that surrogacy arrangements exploit the
surrogate mother and are potentially harmful to the child, the available empirical research
does not support this position. Indeed, the relatively limited amount of research that has
been conducted suggests that surrogacy arrangements are, on the whole, successful.’
23
22
Willmott L, ‘Surrogacy: ART’s Forgotten Child’ (2006) 227 University of New South Wales Law
Journal 227 at 230
23
Willmott L, ‘Surrogacy: ART’s Forgotten Child’ (2006) 227 University of New South Wales Law
Journal 227 at 230

Harm is of course a difficult concept to evaluate. A dilemma for law makers is the lack of
empirical research as to either the extent of the practice or the impact of the practice on
children; birth mothers; intending parents and third parties such as counselors.
In Australia such research is non-existent what we must rely upon is international
research.
In terms of the birth mother United States quantitative and qualitative studies of
surrogates over the past twenty years, mostly from a psychological or social work
perspective, confirms that the majority of surrogates are satisfied with their surrogacy
experience, do not experience “bonding” with the child they birth, and feel positively
about surrogacy even a decade after the birth.
24
In terms of intending parents United Kingdom research explored 42 intending parents and
34 birth mothers and found that the experiences of intending parents were positive and
that relationships between commissioning parents and birth mothers were generally
good.
25
There is less research focus upon children born of the arrangements – the first of its kind
was a study released in July this year by scientists from the Centre for Family Research at
Britain’s Cambridge University carried out interviews and psychology tests among 39
surrogacy families, 43 donor insemination families and 46 egg donation families.
26
The
children are now seven years old. For comparison, they made the same investigation
among 70 families where the children had been conceived naturally. They also asked the
24
Teman, Elly. 2008. “The Social Construction of Surrogacy Research: An Anthropological Critique of the
Psychosocial Scholarship on Surrogate Motherhood,” Social Science & Medicine. Volume 67, Issue 7,
October , Pages 1104-1112
25
MacCallum F, Lycett E, Murray C, Vasanti J & Golombok S, ‘Surrogacy: The Experience of
Commissioning Couples’ (2003) 18(6) Human Reproduction 1334, 1334
26
Casey P, Readings J, Blake L, Jadva V and Golombok S ‘Child development and parent-child
relationships in surrogacy, egg donation and donor insemination families at age 7’ (2008) Centre for
Family research, University of Cambridge, UK

children’s teachers, in order to get an independent assessment of the child’s wellbeing.
The conclusion of the study was that children born to a surrogate mother or conceived
through donated sperm or a donated egg do just as well psychologically as counterparts
who are naturally conceived.
As we do not have empirical evidence as to the harm of the practice the answer as to the
fragmentation of existing Australian law must lie in palatable politics and moral norms
and ethical principles. It also of course must encompass religious, economic and other
dominant social forces.
In terms of moral judgment the practice of surrogacy evokes a strong emotional response
– on the one hand it confronts our westernized cultural norms by splitting parenthood –
particularly motherhood into different categories of biological, gestational and social.
– on the other hand it has been viewed as “the greatest gift that can be given – the gift of
life”.
With respect to the legal regulation of biomedical development a response based upon a
lack of empirical evidence or morality or political opinion is arguably not enough – it
may also not be enough to apply ethical principles. These also may be contradictory and
confusing. For example in surrogacy principles of personal autonomy clash with those of
paternalism – on the one hand a woman can do with her reproductive capacity as she
pleases – on the other can a woman ever truly give full consent beforehand to give away
a child she gives birth to?
27
Another example is the regulatory difference applied to commercial and altruistic
surrogacy. This must be based upon the practices being different – that love and
altruism is more acceptable than commerce and industry in family formations. Some of
the ethical principles which have been argued as supporting such a distinction include:
27
Current regulation in Australia answers this ethical dilemma by rendering agreements void and
unenforceable meaning that a birth mother cannot be forced to relinquish her child.