I. THE LAW IN NEW SOUTH WALES
2.1 As the law stands in New South Wales, the arrangement of a surrogate motherhood contract is neither prohibited nor encouraged. Although there is no legislation specifically designed to regulate surrogacy, any arrangement made in the State would have to take account of provisions in the existing law which have application. The impact of existing laws on those attempting to obtain a child by surrogacy was analysed at some length in the discussion paper.1 Therefore, this report only provides a brief summary of those provisions likely to have the greatest impact on surrogacy arrangements.
A. Guardianship and Custody of the Child
2.2 Since the commencement of Part VII of the Family Law Act 1975 (Cth) in April 1988, most matters relating to the guardianship and custody of children are heard in the Family Court of Australia. That Part of the Act implemented the transfer of jurisdiction in all cases concerning ex-nuptial and step-children contained in the Commonwealth Powers (Family Law-Children) Act 1986.2 Previously they were heard in State courts.. The State courts retain jurisdiction over adoption proceedings and matters arising under the State welfare legislation.3 The Family Law Act 1975 allows applications to the Family Court to be made by tile parents, the child, or “any other person who has an interest in the welfare of tile child”.4 In a surrogacy arrangement, those interested include:
- the commissioning parents;
- the sperm and ova donors (usually, but not necessarily the commissioning couple);
- the surrogate mother; and
- the surrogate mother’s spouse.
The Court will decide issues of guardianship and custody on the basis of the best interests of the child.5
2.3 So long as there is no dispute between the parties, there is no need for a surrogacy arrangement to come to judicial notice. Those seeking some security for their arrangements may register a child agreement under s66ZC of the Family Law Act 1975. Upon registration the agreement takes effect as an order of the Family Court, and will be enforced by the Family Court to the extent that it is consistent with the best interests of the child.6
B. Adoption of the Child
2.4 Evidence in the press and submissions made to the Commission,7 suggest that the commissioning couple in a surrogacy arrangement may often wish to adopt the child. An adoption order transfers all parental rights and duties to the adopting parents and extinguishes those of the natural parents.8 Unless dispensed with by a court, adoption requires the consent of the parents or guardians and evidence to satisfy the court of the suitability of those applying to adopt. As it is one of the areas of State power reserved from the transfer to the Commonwealth, adoption applications will continue to be heard in the Supreme Court. The unmarried father of a child may object to an adoption application, but this is unlikely to occur in a surrogacy case since he will probably be either the commissioning father or an unknown donor of sperm who is ignorant of the birth.
2.5 Before making an adoption order, the Court requires a background report from either the Department of Family and Community Services or an approved private adoption agency.9 The Court may proceed without such a report in cases in which the applicants to adopt are related to the child.
C. Other Welfare Provisions
2.6 Even if a surrogacy arrangement is concluded between the parties without dispute, the child may still become the subject of judicial proceedings brought by the Department of Family and Community Services. The Department may consider itself to have a public responsibility to test the enforceability or propriety of the surrogacy arrangement in court. it could do this by bringing proceedings in the Family Court, the Children’s Court under the child welfare legislation or in the wardship jurisdiction of the Supreme Court.10
2.7 In the English case of Re C (A Minor) (Wardship: Surrogacy),11 there was no dispute between the commissioning couple and the surrogate mother. The surrogate had given the child to the commissioning parents voluntarily and took no part in the proceedings. The local authority invoked the wardship jurisdiction of the English High Court. Upon being satisfied of the commissioning couple’s suitability as the child’s custodians, Latey J gave care and control to them until a further order could be made. In the meantime wardship was continued.
D. Presumptions of Parentage
2.8 The existing legal presumptions of parentage may also affect parties to a surrogacy arrangement. Where the child is conceived by use of artificial insemination parentage may be determined under the provisions of the Artificial Conception Act 1984. The Act has three main implications for a surrogacy arrangement:
1. Where a married woman acting as a surrogate conceives by artificial insemination, with the consent of her husband, the law conclusively presumes the husband to be the father of the child.
2. Where, in such circumstances, the husband refuses to consent to the AI procedure, the child may be fatherless as the semen donor may be conclusively presumed not to be the father.
3. Where a surrogate is unmarried and conceives by artificial insemination, the child may be presumed to be hers alone, with a conclusive presumption against the paternity of any semen donor.12
2.9 As a result of these presumptions the biological father may have no right to have his name entered on the register of births as the father.13 The law requires, in situation 1 above, that the surrogate’s husband be registered as the father. In situations 2 and 3 it may be that no one will be registered as the father unless the donor acknowledges or obtains a declaration of his paternity from the Supreme Court.14
2. 10 In most States in Australia, the law presumes the birth mother to be the legal mother and therefore requires her name to be entered on the register of births. The Family Law Act adopts these State laws for purposes of proceedings in the Family Court.15 The position in New South Wales is unclear because no legislation has been enacted to assign maternity following artificial conception. It is therefore uncertain who would be treated as the legal mother of a child born in a surrogacy arrangement in this State.16
E. Offences
2.11 In organising and pursuing a surrogacy arrangement, the parties also run the risk of committing a number of statutory offences. Four were noted in the discussion paper, under the adoption legislation, the Children (Care and Protection) Act 1987 and the Registration of Births, Deaths and Marriages Act 1973.17
2.12 The main offence under the Adoption of Children Act 1965 is contained in s50. This makes it an offence to receive any payment or other reward “in relation to the transfer of possession or control of a child with a view to the adoption of the child”.18 Some cases of paid surrogacy would involve the commission of this offence.
2.13 The Adoption of Children Act 1965 also contains offences relating to public advertisements which express willingness to adopt or place a child for adoption, or to offer to make arrangements for an adoption.19 These provisions may extend to intermediaries who place advertisements. Currently, the most likely sources of information for the surrogate mother and commissioning parties are medical practitioners or family planning clinics. As neither of these is likely to advertise it is unlikely these offences will be committed. The offences can also be easily avoided by ensuring that an advertisement does not make reference to any intention to have the child adopted.
2.14 Those who avoid liability under the adoption legislation may come within the ambit of Part III of the Children (Care and Protection) Act 1987. This prohibits the placement of a child with anyone who is not a relative for a period in excess of 28 days in any 12 month period.20 Anyone receiving a child who is not related to them is required to have a licence to foster issued by the Department of Family and Community Services.21 The offence would not be committed if one of the commissioning couple is, in law, the parent of the child.
2.15 The Registration of Births, Death and Marriages Act 1973 makes it an offence to supply false or misleading information in an application to register a birth.22 Unless both of the commissioning couple are, in law, the parents of the chiId, they could not lawfully register the child as their own.
II. LEGISLATIVE RESPONSES IN AUSTRALIA
2.16 The enquiries that have been undertaken into surrogate motherhood were described in detail in the discussion paper.23 Here we refer only to legislative initiatives that have directly addressed the question of surrogacy. In Australia there have been three such enactments, in Victoria, South Australia and Queensland.
A. Victoria
2.17 Following the Victorian Committee’s reports24 on all aspects of Artificial Conception, the Victorian Parliament passed the Infertility (Medical Procedures) Act 1984. Section 30 of the Act deals directly with surrogate motherhood. Under that provision, which came into operation on 10 August 1986,25 any payment made pursuant to a surrogate motherhood agreement is prohibited.26 The making or receiving of such a payment is an offence whether the party in question is an intermediary, the surrogate mother or a commissioning parent.27 Agreeing to enter such an arrangement is also an offence.28 Persons committing offences under s30 , are liable for a fine or two years imprisonment.29 Advertising is prohibited and the Act specifically provides that all surrogacy “contracts” are void.30 The Act does not, however, prohibit altruistic surrogacy or an intermediary operating- for no payment.31
B. South Australia
2.18 Part IIB of the Family Relationships Act 1975 was introduced by the Family Relationships Act (Amendment) Act 1988 to deal with commercial surrogacy. This Part makes surrogacy contracts and procurement contracts (defined to cover the introduction of parties by an intermediary) illegal and void.32 However, the Act only attaches criminal penalties to the actions of intermediaries and to the use of advertising.33 It is not an offence to enter a surrogacy agreement, but all agreements are void and illegal. Some payments made under them are, however, recoverable as debts.34 As in the Victorian Act, the offences under this Act are limited to commercial activities.
C. Queensland
2.19 The most recent of the legislative responses in Australia is embodied in the Surrogate Parenthood Act 1988, which commenced operation on 6 October 1988.35 The Act prohibits all forms of surrogacy, formal and informal, paid and altruistic. All surrogacy contracts are void and entering into an agreement (or offering to do so), as well as giving or receiving payment are prohibited.36 Any advertising in relation to surrogacy is also prohibited.37
2.20 Unlike other legislation in Australia, this Act attaches criminal penalties to all parties to agreements.38 This includes intermediaries, surrogates and commissioning parents. They are all liable to fines or a maximum of three years imprisonment or both.39 In addition, in an attempt to control those who would go interstate to arrange a surrogacy, the Act purports to apply to any person ordinarily resident in Queensland, wherever the prohibited acts occur.40
D. IVF Surrogacy in Australia
2.21 The use of IVF to assist a surrogate pregnancy has been prohibited in Victoria and South Australia. Victoria was the first State in Australia in which a child was born by use of IVF surrogacy. In May 1988, Linda Kirkman gave birth to a child conceived by the use of ova taken from her sister Maggie and fertilized by donor sperm.41 In July 1988, ss 11,12, and 13 of the Infertility (Medical Procedures) Act 1984 (Vic) were proclaimed to commence. These provisions seek to prevent a repetition of IVF surrogacy in Victoria, by prohibiting the use of IVF technology on women who have not been diagnosed as infertile.42
2.22 In South Australia the Reproductive Technology Act 1987, which commenced in April 1988, contains a similar prohibition on the offer of IVF treatment to couples who are otherwise fertile, unless there is a risk of the transmission of a genetic defect in natural conception.43
2.23 A second Australian IVF surrogacy was carried out in Western Australia, when a Victorian woman traveIled to Perth in October 1988 to give birth to tripIets for her sister and brother-in-law.44 The triplets were the genetic children of the commissioning couple. The medical practitioner who attended the surrogate mother is reported to have undertaken the IVF treatment against the recommendation of two ethics committees in the State.45
III. MAJOR OVERSEAS INITIATIVES
2.24 Initiatives being taken overseas were described in detail in our discussion paper.46 Some are repeated here to give an indication of the current legislative climate.
A. United Kingdom
2.25 Following the majority report of the Warnock Committee, legislation was passed by the United Kingdom Parliament.47 The Surrogacy Arrangements Act 1985 prohibits advertising and other aspects of commercial surrogacy.48 The Act is aimed primarily at intermediaries and they are the only persons on whom the Act imposes criminal penalties.49 Neither the surrogate nor the commissioning parents can be charged under the Act, and payments made directly to the surrogate are excluded from the definition of “commercial basis”.50
2.26 The United Kingdom legislation is drafted to apply to “arrangements whether or not they are lawful and whether or not they are enforceable,”51 but the question of whether the agreement is enforceable at common law is left open.52
B. Canada
2.27 The Ontario Law Reform Commission’s study of surrogate motherhood is the only major inquiry of its sort to recommend legislation to permit and enforce surrogacy contracts.53 The model recommended by the Commission allows for the enforcement of surrogacy arrangements if the contract has received prior court approval.54 The process would require the Court to be satisfied that:
- the surrogate and the commissioning couples are suitable to participate in the the arrangement;
- surrogacy is the only medical option available to the commissioning couple to allow them to have a child; and
- the physical and mental health of the surrogate is satisfactory.55
2.28 The Ontario Report also recommended that the names of the commissioning parents should be entered on the birth certificate as the child’s parents.56 The report clearly runs counter to more recent trends in the area, and has yet to be acted on.
C. United States
2.29 The situation in the United States is difficult to summarise as there are different activities occurring at State and Federal levels.57 In a recent visit to the Commission, Dr Alto Charo, of the Office of Technical Assessment, explained the far-reaching influence on U.S. attitudes of the Baby M case, exemplified by an increase in the number of anti-surrogacy bills which have been brought before both State and Federal legislatures recently.58
FOOTNOTES
1. Surrogate Motherhood: Discussion Paper 3 (DP 18 1988) at 3.5-3.53.
2. Commonwealth Powers (Family Law - Children) Act 1986, s3(1).
3. Id s3(2); Family Law Act 1975 (Cth), s60E.
4. Family Law Act 1975 (Cth), s63C(1).
5. See discussion in Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 3.12.
6. Family Law Act 1975, s66ZD(3) and (4).
7. See Chapter 1 note 13; Submissions from NSW Infertility Social Workers Group (SB 15, 1988); J R Lauer (SB 23, 1988); S J Steigrad and L R Leoder (SB 24, 1988); “Surrogate Mother” (No 2) (SB 27, 1987).
8. Adoption of Children Act 1965, s35.
9. Id s21, 21(1A)-(1C).
10. See Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 3.18-3.22.
11. [1985] FLR 846.
12. Artificial Conception Act 1984 , ss5, 6; but see also Children (Equality of Status) Act 1976, s18A, discussed in Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 3.34-3.37.
13. Registration of Births and Deaths and Marriages Act 1973 s12(1), s42A(1) and (2).
14. Children (Equality of Status) Act 1976 , ss11, 13 but see s18A(3); Registration of Births and Deaths and Marriages Act 1973, s42A(2)(f).
15. s60B(2).
16. For discussion of this issue, see In Vitro Fertilization: Discussion Paper 2 (DP I5, 1987) at 3.2-3.7 and -the report In Vitro Fertilization (LRC 58, 1988) at 2.7-2.10.
17. At 3.28, 3.30 and 3.32.
18. Adoption of Children Act 1965, s50(1).
19. Id sS2(1).
20. Children (Care and Protection) Act 1987, s42, 44; as amended by Children (Care and Protection) Amendment Act 1988, Schedule 1(7).
21. Id s42(1).
22. Registration of Births, Deaths and Marriages Act 1973, sS7(1).
23. Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 4.4 - 4.20.
24. Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization Interim Report (1982); Report on Donor Gametes in IVF (August 1983); Report on the Disposition Produced by in Vitro Fertilization (August 1984) at 51.
25. Victorian Government Gazette 6 August 1986.
26. Infertility (Medical Procedures) Act 1984, s30(2)(b) and (c).
27. Id s30(2)(c).
28. Id s30(2)(b).
29. Id s30(2).
30. Id s30(3).
31. While the definition of surrogate motherhood in s30(1) extends to altruistic arrangements, the offences listed in subsection 2 do not.
32. Family Relationships Act 1975, s10g(1) and (2).
33. Id s10h.
34. Id s10f(3).
35. The Act commenced on the date of assent.
36. Surrogate Parenthood Act 1988 (Qld), ss3, 4.
37. Id s3(1)(a).
38. Id s3(1) generally.
39. Ibid.
40. Id s3(2).
41. Maggie and Linda Kirkman, My Sister’s Child (Penguin, 1988).
42. The Infertility (Medical Procedures) Act requires that the woman who is to receive the treatment and her husband should have been undergoing examination or treatment for not less than 12 months which has satisfied the medical practitioner that the woman is unlikely to become pregnant as a result of a procedure other than IVF.
43. Reproductive Technology Act 1987 (SA), s12(3)(b).
44. “Triplets born t o surrogate sister” Daily Telegraph 20 October 1988 at 7; “Surrogate Mother to be ‘special aunt”’ Australian 20 October 1988 at 1; “A Perfect Family” New Idea, 3 December 1988 at 3-7.
45. The doctor in question was aware of the committees’ opinions, but decided to follow the recommendations of the ethics committee established within his own private IVF clinic; “IVF babies ‘created against advice”’ Australian 21 October 1988 at 1.
46. Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 4.21-4.47.
47. Between the report and the legislation, the Government issued two further consultative documents: Department of Health an(] Social Security (UK) Legislation on Human Infertility Services and Embryo Research (Cm 46, HMSO, London , 1986); Department of Health and Social Security (UK) Human Fertilization and Embryology: A Framework For. Legislation (Cm 259, HMSO, London, 1987).
48. Surrogacy Arrangements Act 1985 (UK), ss2(1), 3(1).
49. Id s2(2).
50. Id s2(3).
51. Id s1(9).
52. See Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 4.26; see also Susan Sloman “Surrogacy Arrangements Act 1985” (1985) 135 New Law Journal 978 at 980.
53. Ontario Report (Vol II) at 218-271.
54. Id at 234.
55. Id at 236ff lists in detail the features of the scheme.
56. Id at 260.
57. Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 4.38-4.43.
58. Meeting of the Commission with Dr Alto Charo, 6 June 1988; details of these bills are given in Office of Technology Assessment of the Congress of the USA, Infertility: Medical and Social Choices (1988).
