Surrogacy Bill 2010
The Surrogacy Bill 2010 deals with an issue that concerns a large number of people in the community and that has received a great deal of attention from persons who want their values and beliefs known and presented to this Parliament. At the recent launch of his autobiography, John Howard stated, “Politics is the debate about issues and beliefs.” That is exactly why I will speak about my values and the beliefs of the Family First Party in regard to the Surrogacy Bill 2010. The objects of this bill are: to make all surrogacy arrangements unenforceable, except to the extent that they provide for the payment of a birth mother’s costs; to prohibit commercial surrogacy arrangements; to prohibit the advertising of surrogacy arrangements; to provide for the recognition of surrogacy arrangements, in certain circumstances, by allowing the parentage of a child of a surrogacy arrangement to be transferred to another person; to protect the privacy of surrogacy arrangements; and to enable a person whose parentage is transferred as a result of a surrogacy arrangement, and other affected parties, to access birth information in relation to the person, similar to the arrangements for access to information that apply when a person is adopted.
On the face of it, I commend the Attorney General for what he has done: many of those points are reasonable and sensible and will benefit the community. But the bill has some unintended consequences, and I will address them. For those who are not cognisant of all the details, surrogacy is—put simply—an agreement in which a woman agrees to become pregnant and deliver a child for another party who cannot, or chooses not to, have the child themselves. However, surrogacy is not simple—in fact, it involves a number of contentious issues that will no doubt be investigated today by many members of the House. This is not a debate about allowing or disallowing surrogacy agreements, as surrogacy agreements have been in place for many years without legislation. It is a bill that aims to address the difficulty of gaining legal parentage of one’s surrogate child, and recognising parental rights to a surrogate child as being in the best interests of a child.
First and foremost, I believe it is important to note the legality of surrogacy in Australia. Commercial surrogacy is illegal in all States and Territories of Australia, and is envisaged to remain that way. What is called “altruistic surrogacy”—when a person becomes pregnant in order to benefit another family without any commercial transaction—is legal in Queensland, the Australian Capital Territory, Western Australia and Victoria. In South Australia it is illegal for same-sex couples or singles, but legal for heterosexual married or de facto couples. In Tasmania altruistic surrogacy is illegal even though it is legal in other parts of the nation. In the Northern Territory there is no legislation relating to surrogacy. In New South Wales there are no laws relating specifically to altruistic surrogacy, hence the introduction of the bill.
Queensland, the Australian Capital Territory, Western Australia and Victoria recognise all non-genetic parents at birth, whereas New South Wales, the Northern Territory and Tasmania recognise only female couples, not male couples. South Australia does not recognise either. In-vitro fertilisation and artificial insemination is legal for female same-sex couples in all States and Territories, except South Australia. In-vitro fertilisation and artificial insemination for surrogates of male couples is legal in Queensland, the Australian Capital Territory, Western Australia and Victoria, but illegal in New South Wales, Northern Territory, Tasmania and South Australia. I believe a number of contentious issues necessitate a thorough discussion to ascertain whether the bill is in the best interests of the child, although it is obvious from my remarks that we need national legislation to cover those issues and to develop some consensus of opinion across the nation in relation to all the various areas.
Issues of concern include how a surrogacy agreement affects the child, the surrogate mother and the commissioning parents—that is, those who require the baby to be born of a surrogate mother. It is about not only the immediate impact but also the impact that may be caused in the future. One may argue that a surrogacy agreement encourages the birth of a child into undesirable circumstances, and that such arrangements are really contracts for the purchase of a child, even when money is not involved. The Life, Marriage and Family Centre states:
The Surrogacy Bill 2010 prohibits commercial surrogacy, but makes provision for the reimbursement of “reasonable costs” to the birth mother of the pregnancy and birth. Unfortunately, allowing reimbursement of costs associated with the pregnancy and birth effectively permits de facto commercial surrogacy by introducing a monetary element into the relationship between the intending parents and the birth mother. An important reason why Australia continues to resist the reimbursement of expenses to living organ donors is that “… reimbursement for financial losses may be indistinguishable from direct payment for an organ, especially for those who are unemployed.”We have a similar problem in the case of surrogacy, but a difference in the new legislation from those issues concerning living organ donors. I appreciate that surrogacy arrangements occur with or without legislation protecting them and that this bill is a perceived solution to the custody disputes that may result from such agreements, which in turn can seriously prejudice a child’s welfare.
Psychologists have long proven that the treatment of a child in their first year is the model for the rest of their life. The possible lack of bonding between a surrogate and her child could lead to emotional and other problems in the child in later years, as many psychologists would point out, especially if after birth the commissioning couple decline the child and the surrogate is left to care for a child she did not intend to keep and may not even have wanted. There is also the possibility of anxiety or psychological despair caused to the child who finds out later in life that they are the result of a surrogacy agreement, particularly if it involves donor sperm and donor ovum, and surrogate and commissioning parents. That is a total of five persons who may be involved in one child’s life.
Again, I come to discuss the issues of same-sex couples and single persons rearing a child, and again I state that no person has an inherent right to a child. It is not in the best interests of the child to deliberately commission a child without the beneficial traits that come from having both a mother and a father involved in that child’s life. Studies have shown and proven that a mother and a father have very different but complementary traits and, when in a loving and committed relationship, form the best environment for a child, both in childhood and in later years. There are unique strengths that men and women bring to nurturing a child and distinct benefits that a child receives from being mothered and fathered.
It is also of paramount importance that children have a right to their biological and cultural heritage. The bill aims to formally amend a child’s birth certificate to include only the commissioning parents. An original birth certificate may be kept on file at the Registry of Births, Deaths and Marriages and is accessible to the child once they have turned 18 years of age, but what happens when commissioning parents choose never to inform their child that they are the product of a surrogacy arrangement? How would they know that they were anything but the product of their parents’ love and commitment to each other unless they found out that they had been commissioned by their parents and costs had been paid? I am sure a child would question this if their parents are the same sex, as it is physically impossible for them to procreate, but if the child’s parents are heterosexual then there is no cause to alert them. Elizabeth Marquardt in her publication called the Revolution of Parenthood states:
Narelle Grech, an Australian donor-conceived woman in her early twenties, asks “How can you create a child with the full knowledge that he or she will not be able to know about their history and themselves?” A 31-year-old Japanese man stated “The most painful thing was the fact my parents didn’t tell me for 29 years. Unless I was told by my parents, I couldn’t even exercise my right to know my biological origin.” By contrast, a 51-year-old woman stated “As a woman dealing with the prospect of infertility, all you want is that baby … It never occurred to me this child might want to find her biological father someday.”I believe it is the right of every child to know their natural parents and, as far as possible, to be raised by them. Apparently the House must pass the Surrogacy Bill 2010 tonight. It is imperative that a child knows who their natural parents are, as well as their surrogate mother and the commissioning parents, and to have them identified as such on their original birth certificate. The New York Times reported:
From a child’s point of view, according to a growing body of social science research, the most supportive household is one with biological parents in a low-conflict marriage.The United Nations Convention on the Rights of the Child clearly states:
The child 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 creators of this declaration understood key features necessary for human identity, security and flourishing—having a name, being a citizen of a nation whose laws protect you and, whenever possible, being raised by the two people who physically made you. How can the House just ignore these facts? I have noticed that the bill states that the Supreme Court may grant a parentage order if satisfied that:
There is a medical or social need for the surrogacy. Where there is a female intended parent, she must demonstrate that she is unlikely to be able to conceive or safely give birth, or is likely to conceive a child affected by a genetic condition or disorder. Male singles or male same sex couples will automatically meet the definition of “medical or social need” as they are unable to give birth.I ask the House: Is it really necessary for me to explain why a single male or a male couple cannot produce a child? I do not think so. Is it then necessary to explain why a single woman or a female couple cannot produce a child? Again, I think not. Then why is it that this bill legislates that single women, single men and same-sex couples are all entitled to surrogacy through the concept of “medical or social need”? Why not just omit the phrase to include everyone in the manner intended? Perhaps the Attorney General could answer that question when he replies to the debate. Diverting to another issue, I believe it is important to consider the risks to a surrogate mother. A surrogate mother is expected to carry her child to term, therefore restricting her lifestyle in many ways. The Life, Marriage and Family Centre states:
It is highly questionable whether a surrogate mother can ever be sufficiently free and informed of her potential physical, emotional and psychological state at the end of nine months of pregnancy, to give legitimate consent to any surrogacy arrangement. Emotional coercion, however subtle, is a particularly serious possibility when the potential surrogate mother is a relative or close friend of the commissioning couple. In view of these inherent difficulties, there should be extensive, independent and mandatory counselling for all parties, and especially for the surrogate mother, about the social and psychological implications of entering into a surrogacy arrangement, with a focus on the welfare and interests of the child to be born. The opportunity for a surrogate mother to opt out of any arrangement at any stage should remain.This bill only recommends counselling a surrogate mother before the agreement has taken place and not after the birth of the child, so when the child is born the surrogate mother would have to hand the child over to the commissioning parents. It is at this stage that counselling is absolutely essential. The issues that concern me are: What if the separation between the surrogate mother and the child caused significant emotional suffering that could not be managed by compulsory counselling prior to the agreement? What happens if, after many years, the surrogate mother has psychological problems caused by giving away the child, especially in the case where the surrogate mother is the biological mother or if the surrogate’s own family are adversely affected by the surrogacy agreement? For example, how can the agreement be explained to the surrogate’s other children who are forced to contemplate that the child within their mother’s womb is not their brother or sister, but the child of someone else? What happens if she changes her mind during pregnancy, as has happened in many surrogacy cases? The bill proposes:
The intended parents will have no cause of action against a birth mother if she decides to keep the child, or terminate the pregnancy. Conversely, the birth mother will not be able to sue the intended parents should they decline to accept care and responsibility for the child.It is also crucial to state the concerns that may come from the commissioning parents. What if the surrogate mother refuses to hand over the child, or perhaps threatens she will harm herself or the child if she does not receive monetary compensation? Are the commissioning parents not subject to emotional blackmail or financial duress as well? This bill suggests not. It suggests that the commissioning parents cannot do a thing if the birth mother decides to keep the child, and that in turn may cause distress to all parties through a long, drawn-out custody court case, which is not beneficial for anyone concerned. How can we legislate surrogacy agreements if we do not specify the very many different configurations, some of which I have mentioned, that may be involved in a surrogacy agreement? There can be possibly five people involved in a surrogacy agreement—the donor of the sperm, the donor of the ovum, the surrogate mother, the two commissioning parents and, of course, the child that is born. In her publication The Revolution in Parenthood, Elizabeth Marquardt states:
In Pennsylvania, a judge recently had to decide parentage in a case in which a surrogate mother carried triplets for a 62-year-old man and his 60year-old girlfriend. When the couple failed to pick up the infants, the hospital initiated steps to put them into foster care. In response, and eventually with the judge’s approval, the surrogate mother took the children home and began raising them as her own. But the commissioning couple continues to fight for access to the children (and the 62-year-old male has been ordered to pay child support), while the college student who contributed her eggs for their conception is asserting her parental rights as well.Therefore, in this case, the commissioning parents and the ovum donor were all fighting the surrogate mother for custody of the children. In the case here of Baby E, with which I am sure all members are familiar, Baby E was conceived after a female same-sex couple approached their friends, a male same-sex couple, and proposed a surrogacy agreement whereby one of the females would be artificially inseminated by one of the males. Baby E was born in July 2008 and was soon in the middle of a heated custody battle between the same-sex couples. Of course, the one who suffered the most out of this ordeal was Baby E. The judge, with the wisdom of Solomon, decided that all four parents should care for Baby E. Cases such as these occur all over the world, and that supports the rationale that all surrogacy arrangements must be heavily legislated against so that the parties involved, especially the child, are not adversely affected. On another note, questions have to be raised as to the moral status of the unused embryos. Will they be destroyed or experimented upon? Who will look after their interests?
The Life, Marriage and Family Centre has expressed concerns over the human dignity in surrogacy arrangements. It states:
Surrogacy instrumentalises children by placing the process of their conception, birth and upbringing under a contract. A child becomes the object of an arrangement aimed at fulfilling the needs of the commissioning parents. Furthermore, in the absence of conclusive empirical evidence about the immediate and long term effects of surrogacy upon children, surrogacy is an experiment in child welfare. We simply do not know enough about the effects of surrogacy to judge it as a ‘social good. ‘Surrogacy also instrumentalises women who, for complex reasons, may feel a duty to ‘volunteer’ their wombs for those purposes.That is particularly the case where a sibling cannot have children of his or her own.
No woman should ever be reduced to being a mere means to other people’s ends.
Surrogacy weakens the integrity and functionality of the family by confusing relationships between children and parents, as well as relationships between spouses or partners; promotes the de-linking of the legal notion of parenthood from traditional understandings and natural ties; and contributes to a vision of family life dominated by adult desires. Surrogacy fails to respect the dignity of both children and treats each as mere instruments.
One may argue that the bill is being discussed tonight to address the very basis of these concerns. However, I must say that I disagree with such an argument. I believe that it is impossible to cover all the issues that can arise from a surrogacy agreement because, simply put, we are not able to adequately legislate against the unpredictable emotional distress that a surrogacy agreement inflicts on all the parties involved, and for the many different configurations that may be involved in a surrogacy agreement. Until we do so, I believe surrogacy should remain illegal.
I am sure the House can see that this bill covers only the bare minimum and conveniently does not legislate on other matters of concern. If the Government is intent on legislating on surrogacy agreements, I recommend it does it accurately and all-inclusively of the many concerns I have stated, so that all aspects of surrogacy agreements are adequately covered and all parties are protected. In other words, I believe this bill is only half-baked. In her publication Children Human Rights to Natural Biological Origins and Family Structure, Margaret Somerville sums it up simply by stating:
We have obligations to ensure respect for these rights of children. It is one matter, ethically, not to interfere with people’s rights of privacy and self-determination, especially in an area as intimate and personal as reproduction. It is quite another matter for society to become complicit in intentionally depriving children of their right to know and have contact with their biological parents and wider family, or their right to be born from natural biological origins. When society approves or funds procedures that breach these rights of children and, arguably, when it fails to protect such rights of children—for instance, by failing to enact [relevant] protective legislation—society becomes complicit in the breaches of rights that ensue.I say to the Attorney that the heart of my argument is this: If a bill fails to protect the rights of children, for instance by failing to enact all relevant protective legislation, then we become complicit in the breaches of the rights that ensue. The bill fails to specifically address pertinent issues of concern and is feeble in its attempts to legislate surrogacy agreements. As I said at the beginning of my speech, as the parliamentary leader of Family First and considering the rights of the child paramount in my decision, I have spoken about my values and the beliefs of Family First in regard to the Surrogacy Bill.