Our current laws are not fit for purpose. It was a decade ago, after an informal inquiry and then a more formal inquiry that a House of Representatives committee recommended urgent national reform (reform has been snail paced) and that there be national, non-discriminatory surrogacy laws. We still don’t have national surrogacy laws. There is still some discrimination:
- Only in December did Western Australia enact laws to remove discrimination in surrogacy. Those laws are to be implemented on a schedule which has not been announced, over 18 months. I do not know if the end of discrimination there is now or over a year from now. In the meantime, there has been a court case in Western Australia, to end that discrimination. Judgment in that case was reserved, and has not been delivered.
- Tasmania still requires that everyone to the surrogacy arrangement live in Tasmania. If you live in Launceston, and your would be surrogate, your sister lives in Geelong, she cannot be your surrogate because she does not live in the Apple Isle.
If you have hours available, then I suggest have a look at my full submissions sent to the Australian Law Reform Commission, as to how I think how surrogacy is regulated in Australia should change. But you have been warned! One of those submissions is over 100 pages long. There is a lot of turgid reading there! My submissions are on the Page Provan website.
So I’m going to give you a snapshot of how I think things should change in this video. Many of the changes I support are proposed by the Australian Law Reform Commision in its discussion paper, which is the second of its three reports. The first was an issues paper, to discuss what it saw the issues. Then the discussion paper has followed, refining and defining the matter further- and by July there will be its final report to the federal government with the ALRC’s recommendations.
My views in snapshot are:
- Consistency
- Access
- Availability
- Autonomy
- Certainty
- Parentage
- International Parentage
- Decriminalisation
- Human rights discourse
Here goes with each of these topics.
Consistency
When the informal House of Representatives surrogacy inquiry took place over a decade ago, many of the witnesses in attendance got caught up in a dispute there about whether they were talking about commercial surrogacy or compensated surrogacy. While I had a view then, as I do now, that women should be compensated, and there should be some regulation about how that occurs, I told George Christensen that while I had a view on that matter, there were two greater issues that I was immediately concerned about: access and consistency.
I explained that if an intended mother, let’s call her Taylor, living in Midge Point, Queensland, had a sister in Adelaide, let’s call her Britney, who offered to be her surrogate, then they would have to comply with both States’ laws- which remained different. Added complexity has added costs to what is already an expensive process, and unnecessarily adds to delay and stress.
The surrogacy arrangement would be a Queensland one, in that example. Under South Australian law- that arrangement would be unlawful, because no one in the South Australian government remembered to write the regulation to recognise interstate surrogacy arrangements affecting South Australians.
There need to be national laws enacted by the Commonwealth, or a uniform law enacted by the States and Territories. I don’t care. Just one version, not the eight we have now. If we have a Commonwealth version to apply everywhere- great. If we have one State and Territories version instead- also great. Let’s just have one system, not two or three or up to eight.
When railways were being built in the 19th century across Australia, we ended up with wide gauge in Victoria, narrow in Queensland, South Australia, Tasmania and Western Australia and standard gauge elsewhere. The unfortunate people of South Australia had to endure all three gauges. The legacy of these acts in the 19th century means that it still remains impossible to catch a train from Cairns to Melbourne. There must instead be three trains: Cairns to Brisbane, Brisbane to Sydney and Sydney to Melbourne.
Just one system, PLEASE!
Access
There continue to remain barriers to access surrogacy in Australia. Aside from the barriers I mentioned before in Western Australia and Tasmania, while everyone else who needs to do IVF can get Medicare rebates, there remains a fossil of exclusion against surrogacy. Since 1991, at a time when surrogacy was frowned upon, Medicare has excluded benefits for surrogacy. It has now been about a decade and a half since Australian states said that surrogacy was OK- but this discriminatory exclusion has remained, much like the dead rat in the wall. Everyone knows it’s there. It continues to stink, but no one is prepared to get rid of it. My efforts to persuade the federal government to remove this discriminatory exclusion have been unsuccessful, so far at least.
In a Commonwealth Medicare IVF budget in the hundreds of millions for IVF, how much would this change cost? I calculated it at about $1m- a drop in the ocean. Intended parents should not have to dip into their super or increase their mortgage to pay for their surrogacy journey, if the taxpayer for a modest amount, consistent with what other people get for their IVF, is able to help.
Availability
We as a country say we are concerned about human rights- but then we are very good at exporting our intended parents to overseas countries- many of which have riskier IVF and worse human rights records than ours.
It is sobering to note that for every child born through surrogacy in Australia, four are born overseas. It is also sobering to note that more Australian children are born via surrogacy in the United States than at home.
A colleague has estimated that 1 in 5 local surrogates was not a friend or family member of the intended parents. A fertility counsellor has estimated it is 1 in 20. What is clear is that unless the surrogate is a friend or family member, there is a very poor prospect of finding a woman who is prepared to be a surrogate. An altruistic surrogacy matching service in Australia has similarly been able to match only about 2 surrogacy journeys a year.
Women are not coming forward to be surrogates. Who can blame them, when they take all the risk, including the risk of death, and our patriarchal system has decided that they should not be compensated for their efforts. But everyone else gets paid: fertility specialist, IVF clinic, embryologist, fertility nurse, fertility counsellor, fertility lawyer– like me- and the judge.
For 15 years now I have called for us to have an honest discussion, which is if we as a nation want to fix this disconnect between a large number of intended parents and a small number of surrogates, surrogates ought to be compensated. This ought to be regulated, to minimise the risk of exploitation.
I an if the view that there should be a positive human rights discourse, as I say below, which in part is to be used to help protect all concerned from exploitation.
If we make surrogacy more attractive to Australian women who are not friends or family of the intended parents, then many fewer Australian intended parents will go to developing countries to do surrogacy there, but do so at home, where it should be local, convenient, safe, ethical and affordable.
Autonomy
When Queensland legislated in its Surrogacy Act in 2010 that the surrogate had bodily autonomy, it was wonderful to read. The provision reflected the common law, but there it was in black and white. Since then, I and others have advocated for this change. That requirement has also since become part of the law in the ACT, Victoria, Tasmania, South Australia, the Northern Territory and soon in Western Australia, when its ART and Surrogacy Act is progressively rolled out- but not yet in New South Wales. It needs to be.
Surrogates are extraordinary women. They have the right, in my view, to control their bodies.
Certainty
Australia wide the requirement is that the surrogate can change her mind after the child is born, and not relinquish the child, and not relinquish parentage. This is a mess. There have been reported cases of surrogates deciding not to relinquish the child, or falsely claiming that they lost the pregnancy- but didn’t (because they want to keep the child- the child who is not genetically theirs), or seek to extort the intended parents. A surrogate and her husband, with the aid of their lawyer demanded almost $300,000 in 7 days as her “reasonable costs” or the child would not be handed over.
Surrogacy arrangements need to be legally binding, as they are in Canada and the United States, for example. Everyone understands the concept of a contract. If the surrogate is capricious, malicious or downright deluded then the contract can be enforced. If the intended parents want to shortchange the surrogate, then the contract can be enforced.
Parentage
The process of establishing parentage of a child born through surrogacy in Australia is slow, cumbersome and ignores the critical needs of the child when it is most vulnerable- when it is a baby. Across Australia, laws require that there is a court order, a parentage order, to establish parentage. In general terms, this order can only be made on application by the intended parents 1 to 6 months post-birth. Experience of the last decade and a half has taught me that most intended parents do not make that application until 4 to 5 months post-birth. In the meantime, the surrogate, and if the surrogate has a partner, the partner also, are the parents of the child.
This approach is on the basis that the surorgate is the mother- because she gave birth. Not because she is genetically the mother (about 90-95% of surrogacy in Australia is gestational surrogacy- the surrogate is not the genetic parent), but because she gave birth.
The result? The parentage of the child is left limping, and the surrogate is left as a parent, much like a shag on a rock. This process fails the children concerned- because the child’s identity is not immediately established after birth, and the people who have parental responsibility, such as the decision to obtain a passport, or make medical decisions about the child- and sometimes critical medical decisions about the child- are not the people who want the child or who care for the child.
Band-aids can be employed, as I and colleagues do, but there must be a better way to establish parentage.
I am delighted that the Australian Law Reform Commission accepted what its counterparts in the UK and New Zealand also recommended- and what I have advocated for- that there be automatic recognition of parentage by the intended parents upon the birth of the child- and the right of the surrogate to go to court to overturn that in the right case.
Having that approach will prevent the situation that occurred following the birth of my daughter, when she had to remain in hospital. I was told that as I was not a parent, I could not make any decisions. Our surrogate, who just wanted to go home, was told in effect that if she left before my daughter did so, as our surrogate was the only parent, child safety would be called (as the only parent was abandoning the child). It was irrelevant that the two intended parents, my husband and me, were in the hospital.
International parentage
For most children born overseas these days, their parents on the birth certificates are presumed to be their parents in Australia. This is true for children born in the UK, New Zealand, the US, Mexico and Colombia for example.
For some children, who are their parents are not reflected on their birth certificates. For example, with gay couples undertaking surrogacy in India a decade or so ago, only one of them is shown as dad. The other is invisible. In some countries, the biological father is shown on the birth certificate, along with the surrogate (who is much like the albatross, hanging around, at least in name). The other parent is not shown.
There remains a challenge about how parentage of child born internationally through surrogacy is recognised. It is these children’s rights. Many countries, including Australia, still have much to do to support those rights. I hope that children born via surrogacy in China, where they have an Australian father, but have been denied surrogacy (because the surrogate is not known) can at last have their parentage recognised, such as through a court process.
I had hoped in 2011 when I agreed to be in charge of advocating for a policy by the American Bar Association about a Hague international surrogacy convention that there would have been one by now, to regulate this process and uphold the parentage of children internationally. A colleague from England, Anne-Marie Hutchinson, told me that there would be such a convention only after she and I were both dead. Anne-Marie is lost to us. I hope that her prediction is wrong, and that a Hague Convention comes about before I am gone.
I talk abut this topic at greater length in another video.
Decriminalisation
I live in Queensland, which was the pioneer for criminalising parents for undertaking commercial surrogacy overseas. My first surrogacy case was in 1988, the year that law came in. The law has been copied in the ACT, Hong Kong, New South Wales, and most recently in Italy and Ireland. There have been no prosecutions in any of those places, except Queensland, and none for the best part of twenty years. No one anywhere has been prosecuted for undertaking commercial surrogacy overseas.
These laws do not work. They frighten intended parents. They do not deter, as our surrogacy statistics make plain. For every child born through surrogacy in Australia, four are born overseas. More Australian children born via surrogacy are born in the United States, the most expensive place to do surrogacy, than here.
Over a decade ago, the heads of Australian family law called for the repeal of these laws which they called ineffective, and by their lack of enforcement, made a mockery of the law. Those words are still true. I wish there was good riddance to bad rubbish- and these laws are repealed.
But let me quite clear. If there are cases of trafficking and exploitation, then the full force of the law should be brought against those perpetrators. Surrogacy is at its heart a wonderful, transformative human process. Exploitation and coercion should not be tolerated.
Human rights discourse
As I say in another video, there are many human rights implicated by surrogacy.
It is essential that as part of the process of surrogacy in Australia and by Australians overseas that these human rights are identified, and applied. The failure by Australia, as the only Western common law country not to enact a Human Rights Act, has meant too rarely do human rights get discussed as part of the surrogacy process. I wish it were otherwise.