Statement by the Chief Justice and the Chief Judge about surrogacy
Joint statement from the Chief Justice of the Family Court of Australia, Diana Bryant AO and Chief Judge of the Federal Circuit Court of Australia, John Pascoe AO CVO
Commercial surrogacy contracts entered into overseas often disregard the human rights of the children and surrogate mothers involved and lead to the exploitation of poor and vulnerable women. Commercial surrogacy is not permitted in Australia and Australians should be concerned about the capacity for the basic human rights of people in our neighbouring countries to be violated.
Our concerns include:
The rights of the children being ignored.
• What protections are in place when the contracting parents won’t take a child born
from these arrangements? Whether due to illness or disability, for example, or because there are twins born when the contract only stipulates one child. The surrogate mother is usually in no position to care for these unwanted children.
The rights of a child to know their genetic heritage is completely ignored.
• We, as a society, think it is vital that children know both parents – sperm donation
and adoption practices of the past have taught us that – and yet surrogate children are often born by donor egg and that donor is completely unknown. The children born will likely never know about their genetic heritage, including genetic predisposition to hereditary diseases.
The suitability of parents and the safety of the child.
• The suitability of parents is assessed when parents are adopting overseas or adopting
or fostering children within Australia. There are no constraints or safeguards with overseas surrogacy arrangements.
We are concerned about the inconsistency of Australian laws where overseas commercial surrogacy is illegal in some states but not in others. Where it is illegal to enter into a commercial surrogacy arrangement overseas, governments are apparently unwilling to enforce existing laws.
Courts being asked to make parenting orders are placed in a difficult position where there is clear illegality by the Australian “parents” but there is uncertainty about whether any action will be taken by the relevant authorities. Parents who have acted in good faith should not be left in legal limbo where their status as parents is unclear as is currently the case under state and federal laws.
In our view, if governments do not want to enforce these laws, they should be repealed.
We understand the powerful desire to become a parent, but it ought not to be at the expense of the welfare of the child or surrogate mother. We believe that children, surrogate mothers and would-be parents could be better protected if commercial surrogacy arrangements were permitted (and thus regulated) in Australia.
Sadly, in our experience, the story of baby Gammy is not an isolated one but it provides an overdue opportunity for public debate and to focus on the establishment of a proper legal regime that protects the position and human rights of all parties, especially the vulnerable new-born.