Queensland needs ‘real world’ surrogacy laws

Federal Attorney-General Philip Ruddock recently urged the states to adopt a uniform national policy on surrogate births, and in doing so he has triggered a debate on an issue that pits science and childless couples against legislators.

The laws on surrogacy in Queensland provide a good snapshot of the gulf between scientific reality and legislation in much of Australia. Although scientific advances have made surrogate births a reality, Queensland’s current laws make it illegal for childless couples to have a child through a surrogate parent.

Queensland should recognise the need for national laws on surrogate births, and bring the state into line with the 21st century’s real world reality.

Although surrogacy is prohibited by the laws of some states, children will continue to be born of surrogate mothers in circumstances ranging from natural conception through a father who is one of the intended parents and whose mother is the surrogate, to the high tech where the biological parents are represented by anonymous donor egg and sperm carried by a “gestational surrogate” who is not one of the intended parents.

Despite the method at its core, surrogacy remains a realistic solution to the biological and emotional yearning to be a parent. The development of reproductive science has increased the options available to achieve that goal.

Everyone has heard of someone who has gone to extraordinary lengths to conceive or to adopt children. Why then the squeamish attitude of some state governments towards the existence and official recognition of surrogacy?

The states need to adopt a uniform national policy on surrogacy because Australia’s present laws do not reflect the reality of what science can offer childless couples. It is wrong that couples should be breaking the law by trying to have children.

In Queensland a surrogacy arrangement would subject any of the participants to a fine and penalty of up to three years imprisonment. Quite possibly such laws have the effect of simply shifting the complex issues surrounding surrogacy over the border.

Under the Surrogate Parenthood Act of 1988 not only is it illegal in Queensland to enter into a surrogacy arrangement for a child to be conceived or born in the state but, an offence is also committed if the participants are resident in Queensland at the time of reaching agreement regarding a surrogacy arrangement.

This encompasses not only arrangements where there is payment but, also those arrangements which we sometimes hear about in the press where one sister will carry a baby for her childless sibling. Do laws such as those in Queensland simply invite childless couples to seek out a jurisdiction where their wish for children can be fulfilled?

The issues surrounding surrogacy and its impact on the participants and any resultant children are complex and must be addressed with some urgency to do justice to the children born from such methods.

There are also numerous possible legal consequences to consider, such as the people the child recognises as mother and father not being legally regarded as such. They can't enroll them in school, and may experience difficulties in accessing government benefits.

They are also subject to the birth mother's possible claim to have the chid live with her, rather than the intended parents. However to start from a legal point of view would be the tail wagging the dog. There must be a thorough and immediate examination of the issues to do justice to the emotional needs of all concerned most particularly the children and not simply the legal requirements that arise.

Federal Attorney-General Philip Ruddock focused public interest on the issue recently when he said there was need for national consistency on surrogacy laws. At present surrogacy is legal only in New South Wales and the ACT. Mr Ruddock said a consistent approach throughout Australia would remove the need for people to “shop” for surrogacy laws which fitted their needs.

While the Attorney-General did not indicate whether he was for or against surrogacy laws, he believed consistency across Australia is needed. His call was supported by Labor senator Stephen Conroy. The senator and his wife Paula Benson live in Melbourne but had to go to Sydney last year to have a baby through a surrogacy arrangement.

Mr Ruddock reportedly said, “ The fact that some people have to pack up and move themselves to another state in order to access services that may be available there but aren’t available where they live seems to me to be not only unfair but makes a nonsense of our legal system”.

His remarks were quickly taken up by infertility support group Access Australia which called on the Queensland Government to change its surrogacy laws in line with other states and territories.

Access Australia chief executive Sandra Dill reportedly said there is considerable evidence in the states and territories that surrogacy is a successful option for women who do not have a uterus or cannot carry a pregnancy to full term.

"Queensland unfortunately is the only state in Australia where you can be put in prison for having a child. Surrogacy is prohibited in Queensland and it's a criminal offence so we think that is rather draconian and we would suggest an ill-informed position to take."

In New South Wales surrogacy is not illegal as it is in Queensland but there is still no law defining the rights of the possible parties who have an interest in the conception and birth.

The potential interested parties who might wish to maintain an interest in the child are the donors of the egg and sperm, the birth mother and the contractual parents who may or may not have donated the egg and/or sperm. There also needs to be a consideration of the child's rights if any vis à vis all of the participants in the conception and birth.

Certainly the reality of surrogacy is not without its challenges. Will we emulate the US where some states allow virtual onestop fertility shops offering not only medical and legal services but, also an introduction to a surrogate?

These businesses offer a menu of options from natural child birth to sperm and egg donation with a gestational surrogate. They often have what amount to “help wanted” web pages seeking women who will become egg donors and/or gestational surrogates.

The possibility of the decriminalisation or legalisation of surrogacy raises many questions as to what we might expect from this brave new world and what role, if any, Governments should play in its regulation.

Should we expect the Government to set guidelines about who can and cannot be a surrogate and in what circumstances?

Should surrogates be permitted to charge for their services and should others be able to profit from introducing prospective parents to a surrogate? Does the Government have any part to play in regulating contracts between surrogate and intended parents?

Would valid surrogacy contracts allow intended parents to bypass adoption laws and become, at law, the parents soon as the birth has taken place? If not how do we reconcile the stringent vetting process applied to traditional adoptions with children born of surrogate mothers?

What happens if the intended parents separate before the birth? Who will get to determine whether or not particular medical tests are undertaken in utero? If a serious genetic deformity or health matter is discovered can the intended parents “opt out” or even, compel a termination?

Whilst the Attorney General Phillip Ruddock has called upon the states to adopt a uniform national policy on surrogate births his own federal jurisdiction is not a disinterested party.

Although surrogacy and adoption are both the purview of the state legislatures, unless children born of a surrogate mother become, at law, automatically the intended parents’ child at birth, the period from the birth of the child until its adoption remains within the exclusive Federal jurisdiction of the Family Law Act.

The present definition of parent under that act would recognise neither the intended mother nor father of a surrogate arrangement as parents unless they had been recognised by the adoption process.

What challenges does the concept of surrogacy hold for the Family Court and Federal Magistrates Courts administering the Family Law Act? These Courts already deal with extremely complex social and biological relationships and without change to the legislation would continue to do so in the same manner on a matter by matter basis based on the best interests of the child.

How they might determine a matter where the parental obligations and interest are solely the creature of contract not biology remains to be seen.

Reproductive science brings not only possibilities for otherwise childless couples but also challenges for legislators.

The difficulties of these challenges do not exclude state and territory legislators their “not in my backyard” attitude.

There is great merit in the Federal Attorney General’s suggestion of a common approach by the states however the interplay of state and federal legislation and the social and ethical issues that are part and parcel of surrogacy mean that the Commonwealth can not play the role of disinterested bystander.

What cannot be argued is that science has made it possible for childless couples to have babies through surrogates, if they choose to do so.

Queensland law says they cannot do it but science says they can. We need to have realistic laws which reflect modern society, and above all, laws which safeguard any children born through a surrogacy arrangement.