Queensland needs ‘real world’ surrogacy laws

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.