INTRODUCTION
11.1 The terms of reference require the Commission to consider the relevance of surrogacy and reproduction technology to adoption law. The implications of surrogacy and donor reproduction technology for our society are wider than their relevance to adoption.1 However, the Commission’s review is limited to issues relevant to an analysis of adoption law reform. Although the Commission was requested in many submissions to DP 34 to take a position on this wider issue, the terms of reference do not extend to this.2
11.2 Consequently, the Commission has not considered the value or moral status of surrogacy, donor reproduction technology or embryo donation, nor looked at access to or regulation of these processes. Rather, the Commission has considered whether or not adoption should be used to meet the needs of children born in these circumstances, and if so, how adoption law should be amended. The analysis has been made within the context of a lack of legislation in some of these areas,3 where regulation is absent and legal rights are unclear.4
11.3 The relevance of surrogacy and reproduction technology to adoption legislation can be divided into two main areas:
- the use of adoption to resolve the legal status of a child born as a result of these processes and confirming legal parental rights and responsibilities; and
- the use of adoption to secure access to information on genetic and cultural heritage which may be relevant to the development of a child’s identity and or well-being.
SURROGACY ARRANGEMENTS
11.4 In IP 9 a surrogate motherhood arrangement was defined as one in which a woman agrees to bear a child for a commissioning couple, conceiving and carrying the child through the pregnancy, and agrees to transfer all her parental rights and responsibilities to the couple upon the birth of the child.5 The child may or may not have been born as a result of carrying out an artificial conception procedure.6 For example, conception may or may not have involved the use of an ovum7 from the commissioning mother, or sperm8 from the commissioning father.
11.5 Many of our laws reflect the importance of the birth process to the determination of motherhood. It is only technology that has recently allowed the separation of genetic and gestational mothering. The woman who carries the child through pregnancy to birth is described as the birth mother.9 A surrogacy arrangement may be made on a commercial basis, where the birth mother is paid for bearing and transferring the child, or on an altruistic basis where no payment is made.10
11.6 Surrogacy impacts on adoption when people try to use adoption law to resolve permanently relationships, rights and responsibilities between parties in a surrogacy arrangement in the absence of specific legislation on surrogacy. When a commissioning couple enter into a surrogacy arrangement, it is more than likely that they will want to establish the strongest legal relationship between themselves and the child. Similarly, it may also be very important to them to have their names appear on the child’s birth certificate.
Current law and practice
11.7 Although there is no legislation in New South Wales supporting or prohibiting11 either commercial or altruistic surrogacy,12 private surrogacy arrangements are still taking place in this State.13 Surrogacy contracts are unlikely to be enforceable in New South Wales.14
11.8 Submissions and the Commission’s own research indicate that children born as the result of surrogacy contracts require specific legislative protection. An important aspect of this protection is that of their right to access information about their biological origins.
Surrogacy and parentage
11.9 It is necessary to explain how the general law identifies the parents of children born through surrogacy arrangements, since some commissioning couples seek an adoption order to make either or both of them the legal parents of a child who is not otherwise legally recognised as their child.
11.10 Ordinarily, the biological parents of a child automatically have legal rights and responsibilities in relation to that child. However, the situation is different when parents have a child through donor reproduction technology: that is, using donated genetic material such as sperm, ova or embryos.15
11.11 At present in New South Wales,16 where a child is conceived by a fertilisation procedure, either through donor insemination or in vitro fertilisation using an ovum from the woman who becomes pregnant and donor sperm, parentage is determined under the Artificial Conception Act 1984 (NSW) (“the Artificial Conception Act”).17 The Artificial Conception Act has three main implications for a surrogacy arrangement. First, where a woman (either married or in a de facto relationship) acting as a surrogate becomes pregnant by either of the above fertilisation procedures, with the consent of her married or de facto male partner, the law conclusively presumes her partner to be the father of the child.18 The presumption can be rebutted.19 Secondly, if the partner refuses to consent to the fertilisation procedure, the child may be fatherless, as the sperm donor may be conclusively presumed not to be the father.20 Thirdly, where a woman acting as a surrogate (without a married or de facto male partner) conceives by either of the above fertilisation procedures, the child may be presumed to be hers alone, with a conclusive presumption against the paternity of any sperm donor. However, under the second and third situations above, the sperm donor can acknowledge his paternity.21
11.12 The position of the woman who becomes pregnant and delivers a child by the use of a donated ovum or donated embryo is unclear. The Children (Equality of Status) Act 1976 (NSW) (“the Children (Equality of Status) Act”) does not provide the woman with the opportunity to acknowledge her maternity, but she can seek a declaration of maternity from the Court.22
11.13 Consequently, the Status of Children Act 1996 (NSW)23 (“the Status of Children Act”), which is not yet proclaimed to commence, is intended, among other things, to clarify the situation of a woman using a donated ovum and also to bring parentage presumptions in line with the Family Law Act 1975 (Cth) (“the Family Law Act”).24 This change accords with the Commission’s recommendation in its report Artificial Conception: In Vitro Fertilization.25
11.14 Under the Status of Children Act, if a woman (either married or in a de facto relationship) becomes pregnant as the result of the use of another woman’s ovum she will be presumed conclusively to be the legal mother of the resulting child26 and the woman who provided the ovum will be presumed conclusively not to be the legal mother.27 A man who consents to his married or de facto partner being artificially inseminated with another man’s sperm is conclusively presumed to be the legal father of the resulting child.28 Conversely, the man who provided the sperm for that insemination is conclusively presumed not to be the father of the resulting child.29 These four presumptions are irrebuttable.30
11.15 The Family Law Act contains similar presumptions as to legal parentage for children born as a result of artificial conception procedures.31 These presumptions are designed to remove parental responsibilities (including financial) from the gamete32 donors and transfer them to the woman who has undergone the procedure and her (consenting) male partner.
Surrogacy and adoption
11.16 Usually a child has been living with the commissioning couple (often referred to as the social parents) for a period of time and has developed a parent-child relationship with them before the couple seeks an adoption. In most cases, the social parents’ care of the child is not contested by the birth parents.
11.17 As discussed in Chapter 4, adoption procedures differ, depending on whether or not one of the prospective adoptive parents is related to the child.33 Normally, adoption arrangements can only be made with the support of an agency34 unless one of the applicants is a parent35 of the child, or one or both of the applicants is a relative36 of the child.37 Non-related applicants require an agency report,38 while applicants who are step-parents or relatives39 require an accredited social worker’s report.40
11.18 A surrogacy arrangement made with the intention of later adopting the child potentially involves several breaches of the Adoption Act. Offences under the Adoption Act for arrangements leading to adoption include making payments,41 advertising for adoption,42 and negotiating an adoption or transferring a child with a view to adoption without the permission of the Director-General.43 These offences apply to birth parents, prospective adoptive parents and intermediaries who breach them.44
11.19 In particular, it is an offence to arrange privately the adoption of a non-related child. Section 51 states that an offence has been committed if any person, other than the Director-General, the principal officer of a private adoption agency or someone authorised to act on their behalf:
(a) conducts negotiations or makes arrangements with another person with a view to the adoption of a child by that other person; or
(b) except in accordance with arrangements made by or on behalf of, or with the written permission of, the Director-General , transfers, or causes to be transferred, the possession or control of a child to another person with a view to the adoption of that child by that other person.
11.20 Section 50 sets out the offence of giving or receiving payments or reward for, or in consideration of, an adoption. This applies to both intrafamily and non-related adoptions. Section 52 states that it is an offence for persons to advertise or publish the fact that they wish to have a child adopted, or wish to adopt a child, or that they are willing to make arrangements with a view to the adoption of a child.45
11.21 A surrogacy arrangement could be in breach of these legislative prohibitions because participants may:
- enter the relationship with the intention that the child be adopted by the commissioning couple;46 and/or
- make a payment or give a reward in relation to conducting surrogacy negotiations or transferring the care and control of a child.
11.22 Legal requirements discussed elsewhere in this report would also apply to any surrogacy arrangement leading to adoption, such as consent of the birth parents (or its dispensation) and those relating to persons who may adopt.
11.23 The means by which the child came under the daily care and control of the applicants is a factor when considering the issue of the suitability and advantages of the adoption for the child. If it is clear a surrogacy arrangement has taken place, DOCS refers applicants to the range of parenting orders available in the Family Court of Australia.47
11.24 In practice, social parents may often prefer to seek Family Court parenting orders48 conferring parental responsibility on them rather than seeking adoption orders through the Supreme Court.
Discussion Paper 34
11.25 In DP 34, the Commission proposed that DOCS should only facilitate an adoption by the social parents of a child born as the result of a surrogacy arrangement where the following circumstances exist:
- an order for guardianship or custody would not make adequate provision for the child and an order for adoption would be in his or her best interests;
- the child has an established relationship with the social parents;
- the child is aware of his or her genetic relationships with the birth mother, the social parents and any gamete or embryo donors;
- the child has access to information about the birth mother and the birth family;
- the child understands the reasons why the adoption might take place;
- the child is able to participate in the adoption proceedings by expressing a view on the adoption;
- the birth mother has access to the relevant information, consents to the adoption and receives ongoing information about the child’s health, progress and well-being; and
- the birth mother had a period of time in which to revoke her consent after the birth of the child.
11.26 The Commission believed this approach would bring adoption through a surrogacy arrangement within usual adoption procedures and safeguards, but maintain enough flexibility to allow an adoption to take place if it promotes the best interests of the child. In this way, people would not be encouraged to circumvent the legislative prohibition of private adoption arrangements.
11.27 The criteria would apply to all surrogacies and would ensure that an adoption, whether intrafamily49 or non-related, could not take place until the child was of an age to understand his or her biological origins. Once a child had reached such an age it would be easier to determine whether or not adoption would be in the child’s best interests. It would also discourage people entering into surrogacy arrangements merely for the purpose of quickly circumventing the adoption legislation.
11.28 Apart from complying with the above criteria, the Commission acknowledged that all general requirements, such as birth parent consent (or its dispensation) and the eligibility prerequisites of adoptive parents under adoption law should also be fulfilled.
11.29 The Commission further considered that where a birth mother wanted to relinquish her child, born in circumstances where there was a surrogacy arrangement, for adoption, if the above criteria had not been fulfilled the birth mother should only be able to give a general consent to adoption. That is, the birth mother would be unable to nominate specific adoptive parents outside an agency pool unless the adoption was intrafamily. The Commission also suggested that in this case, social parents who have no genetic link with the child that they are applying to adopt should be considered equally with all other adoptive parents in the pool.
Submissions and response
11.30 Submissions generally supported the Commission’s proposal, although it was suggested that the criteria should refer to both birth parents and not just to the birth mother.50 Criticisms of the proposal covered three main areas:
- Adoption law does not permit individuals to make their own adoption arrangements. Therefore, in so far as a surrogacy arrangement results in a private adoption placement, it should not be facilitated at all.
- If adoptions of children placed with applicants as a result of surrogacy arrangements are allowed, this may diminish the deterrent value of the offences under the Adoption Act.
- Adoption law should not regulate surrogacy arrangements or donor reproduction technology, or determine issues of social and biological parentage. Specialised legislation should cover these different issues. Such legislation should also cover access to information on the child’s biological background and his or her ability to contact biological family members.
11.31 Some submissions argued that facilitating the adoption of children born under surrogacy arrangements conflicts with a fundamental principle of adoption legislation, namely, that the adoption process must be controlled by a government department or an approved agency.
11.32 Furthermore, allowing couples to adopt after a surrogacy arrangement had been made, even with the limitation of criteria proposed by the Commission, was said to be a dangerous encouragement of surrogacy. As one submission commented:
[s]urrogacy must be discouraged by legislation. Cases should be dealt with as any other relinquishing mother and child. Any perception of legality would encourage a very damaging and socially unacceptable use of women and children....Surrogacy treats women as disposable and children as commodities to be bought and sold, or even altruistically acquired at someone else’s expense, and cannot be part of a just society.51
11.33 The New South Wales Committee on Adoption and Permanent Family Care stated it could not endorse the facilitation of private surrogacy arrangements even under the criteria outlined in DP 34.52
11.34 Some submissions suggested that the option of adoption should be denied to all children where there is an established or suspected surrogacy arrangement. However, this argument places the needs of the child in a secondary position to a perceived need to regulate a controversial practice for which there are no legislative controls or even a developed moral philosophy.
Recent New Zealand approach to adoption and surrogacy
11.35 Two recent New Zealand cases53 give some indication of the approach which a court may take in surrogacy matters, in the absence of specific legislative direction. In those cases, the Court considered applications where the commissioning couples wished to adopt children who had been placed with them as the result of private surrogacy arrangements. In both cases, payments had been made in relation to the transfer of the child. In both cases, the parties were found to be suitable adoptive parents and it was judged to be in the best interests of the child that the adoption proceed.
11.36 Both cases strained to avoid findings that breaches of the Adoption Act 1955 (NZ), in particular, breach of the prohibition against payments for adoption, had occurred.54 It is not clear from these cases if s 6, prohibiting the placing or receiving of a child under 15 in the home of any person for the purpose of adoption, had been breached. In In Re G His Honour said there was a “possible breach of section 6”.55 If there had been a breach of s 6, as to the effect of that breach the judgment is ambiguous:
[T]he Adoption Act 1955 does not contain a prohibition on an adoption order being made if there are breaches of the Act ...56
11.37 Stewart summarises the judicial direction these cases signal:
Re P indicated a definite reluctance to find that breaches of the Adoption Act had occurred ... despite arguably strong evidence to that effect. Counsel had successfully argued that those sections went to the suitability of the adopting parents, and one might assume that the finding of no breach was based on a reservation that a contrary finding would preclude the making of an adoption order. In re G is at times ambiguous on this point, but the judgment makes it clear, in the end, that breaches of the Act will not preclude the making of an adoption order; they will simply be weighed along with all other relevant evidence. That said, In re G still indicates a marked reluctance to find that breaches have occurred.57
11.38 Stewart puts forward the proposition that the New Zealand Courts are reluctant to find breaches to have occurred because, while that will not preclude the making of an order, it might hinder it, and in cases where an order is clearly the desirable outcome, any hindrance should be avoided.58
11.39 What emerges from these cases is that a possible outcome in a New South Wales adoption application is that the commission of an offence in relation to the original placement of the child through a surrogacy arrangement could be just one of several factors to be considered. A breach of s 50 or 51 of the Adoption Act may not necessarily prevent an adoption application proceeding, but would be a factor relevant to the question whether the applicants were suitable to adopt and whether the adoption was in the child’s best interests.59
Distinction between placement intrafamily and placement with unrelated applicants
11.40 A further issue is whether or not to treat differently cases where the child born of the surrogacy arrangement is placed with relatives and where he or she is placed with unrelated applicants. The adoption procedures for each are different, as discussed in Chapter 4. Where the application is brought as an intrafamily adoption, because the application to adopt can be made privately,60 the issue of the surrogacy arrangement may not come to light even if there is no intention by the applicants to conceal it.61 Without another party before the Court to contest the application, the matter may simply be viewed in terms of the child’s interests without considering the effect of the surrogacy on those interests.
Conclusion
11.41 The presence of a surrogacy arrangement should not be an automatic bar to an application to adopt a child born of such an arrangement.
11.42 Surrogacy issues should be considered in the course of adoption practice rather than dealt with specifically in adoption legislation. The particular surrogacy arrangement and its effect on the best interests of the child is an important matter to be determined in the process leading to adoption.
11.43 The regulation of adoption in relation to surrogacy can be compared with the regulation of other unauthorised private placements (where the child and adults are unrelated) and intrafamily adoptions (where the child and at least one of the adults are related). In consequence, the recommendations on procedures regulating an adoption following the placement of a child with social parents under a surrogacy arrangement should substantially follow those of other non-related unauthorised placements 62 and intrafamily adoptions63 set out in Chapter 4.
11.44 In particular, similar to the adoption of unrelated children discussed in Chapter 4, an agency or the Court should facilitate adoptions under surrogacy arrangements (whether the adoption is intrafamily or not) only where all the following circumstances exist:
- other orders would not make adequate provision for the child and an order for adoption would be in the particular child’s best interests;
- the child has an established relationship with the applicants;
- the child is aware of his or her genetic relationships with any of the following: the birth parents, the applicants, and any gamete or embryo donors;
- the child has access to information about his or her birth parents and birth family;
- the child has an understanding, commensurate with his or her age, of the reasons why the adoption might take place;
- requirements as to the birth parents and child’s views, wishes and consent as recommended in this Report have been complied with; this includes: that the child be consulted and actively involved in any adoption plans according to his or her level of maturity and understanding; that the birth parents be given early notice of any plans to proceed to an adoption; and that the birth parents be fully informed of the consequences of the adoption for the child and themselves; and
- other requirements recommended in this Report have been complied with.
11.45 The Court should retain the discretion to decide whether or not an adoption order should be granted in the particular case. As recommended in Chapter 4, generally for intrafamily and non-related private placements, an agency should support an application for adoption resulting from a surrogacy arrangement and provide a report to the Court. Other requirements of adoption legislation and practice should also apply, such as obtaining proper consents and being satisfied as to the suitability of the applicants to adopt.
11.46 The advantage of this approach is that it avoids having to make special mention of surrogacy in adoption legislation in a way that may be construed as promoting it. It allows a degree of flexibility in determining whether a particular surrogacy arrangement should proceed to adoption, while ensuring the child’s best interests predominate in the process. In this manner, the deterrent value of the offences under the Adoption Act prohibiting unauthorised private arrangements for adoption should not be lessened.
11.47 A diminution in the value of the offences is unlikely for several reasons:
- First, the circumstances mentioned above and all general requirements under the adoption legislation (such as consent and eligibility) have to be fulfilled. The circumstances require the child to be of sufficient maturity to understand the genetic and social relationship with all the adults involved and to participate in the adoption process. Thus a commissioning couple would not be able to organise a surrogacy arrangement and then quickly bypass the legislative requirements for adoption.
- Secondly, under the present legislation, DOCS has supported some adoptions in circumstances where a child has been placed privately with a non-related couple who then wished to adopt the child.64 In these cases, the intentions of the adults involved was clearly a factor in deciding whether the adoption was in the child’s best interests. These cases involved people who had acted outside the legislative structure of adoption for a variety of reasons. The decision as to whether to support such an adoption depended on an assessment of the best interests of the child. DOCS refer to this category as special case adoptions; they are not large in number. Supporting adoptions in these limited circumstances has not led to a diminution in the value of the offence in s 51 of the Adoption Act or the principle against private adoptions. The small degree of flexibility in this area is exercised so as to be able to act in the child’s best interests.
- Thirdly, recognition should not be given to the surrogacy agreement reached between the parties, whether it is contractual or not. The assessment of whether the commissioning couple are suitable adoptive parents and whether the placement is in the best interests of the child should be approached on the same basis as any other adoption, without reference to the agreement between the parties. Thus, if in a particular case, consent has not been given freely and on an informed basis, the transaction has been for financial gain, or the commissioning couple are not considered to be suitable adoptive parents, then no order for adoption will ordinarily be made. The principles underpinning the adoption legislation65 will not have been diminished.
11.48 The present offences relating to private placements contained in the Adoption Act should be maintained66 and any breaches that have occurred should be assessed as going to the suitability of the commissioning couple to undertake the task of adoptive parenting.
DONOR REPRODUCTION TECHNOLOGY
11.49 Donor reproduction technology refers to the birth of a child with the aid of technology and donated genetic material. If a couple uses its own gametes, and technology merely assists the combining of the sperm and the ovum or the implantation of the embryo in the genetic mother, this has nothing to do with adoption legislation and is not referred to in this discussion.
11.50 Donor reproduction technology includes technological processes such as in vitro fertilisation (IVF),67 gamete intra-fallopian transfer (GIFT),68 and artificial insemination by a donor (AID).69 These are used to treat infertile couples at various fertility assistance units around Australia.
11.51 The main issues to be resolved are whether adoption legislation should deal with the following issues in donor reproduction technology:
- access to information; and
- generally, using adoption legislation to meet the needs of the children born of donor reproduction technology.
Current law and practice
11.52 Technology makes it possible to divide the processes of parenthood, so that genetic input, fertilisation, gestation and birth can be separated, and each performed by different people. These divisions make if difficult to characterise the participants as “father” and (especially) “mother”.
11.53 As discussed above, who are considered the legal parents of a child born as a result of a fertilisation procedure depends on various presumptions, both rebuttable and irrebuttable, under legislation.70
11.54 The Artificial Conception Act goes some way to establishing legal parentage. It sets up a presumption of legal fatherhood in the situation where a woman has undergone an artificial insemination procedure by donor sperm. This presumption is intended to remove any parental responsibilities from the sperm donor and instil legal parental rights in the male partner of the woman who has undergone the procedure. As stated above, legal motherhood is unclear in relation to donated ova. It seems more appropriate to amend the Artificial Conception Act to resolve legal parentage in fertilisation procedures rather than use adoption legislation to resolve these issues. This is the approach taken under the Status of Children Act. The presumptions of parentage under the Status of Children Act are set out in paragraph 11.14.
Discussion Paper 34
11.55 Adopted children and children conceived through donor reproduction technology share common ground in so far as they are not genetically related to one or both of their social parents. However, the Commission considered that there are many difficulties in applying the adoption model to the legal status of children conceived through donor reproduction technology.
11.56 Usually, the process of adoption begins with an assessment of the best interests of a child in need of care and then tries to promote those interests in the placement of the child. By contrast, donor reproduction technology does not begin with this focus. Instead, its focus is on fulfilling the needs (or desires) of infertile couples. In these circumstances, adoption legislation could be used to consolidate private arrangements that are not in the best interests of the child. This was expressed by the New South Wales Committee on Adoption and Permanent Family Care as follows:
Whereas adoption is seen as a means of providing families for children, reproduction technology and surrogacy provide children for families. Consequently, in reproduction technology and surrogacy arrangements, the interests of the child are superseded by the interests of the infertile parents. 71
11.57 The Commission proposed that the issues of genetic identity and access to information for children born with the aid of donor reproduction technology should not be dealt with in adoption legislation. These issues are a matter for specialised legislation on that subject.72
11.58 However, the Commission noted in passing that it would be possible for specialised legislation on donor reproduction technology to incorporate the lessons that have already been learned in adoption with regard to access to information. In the past, the practice of adoption involved secrecy and the alteration of birth records. Donor reproduction technology, involving the use of donated gametes or embryos is currently carried out in a similar atmosphere of secrecy and restricted information. Children born with the aid of donor reproduction technology should have the same access to information about their genetic heritage that is currently available to adopted children.73 Suggestions included social parents entering into undertakings to tell their children of their genetic status and exchange information with genetic parents in a similar manner. Identifying and non-identifying information74 about donors and children could be stored on a central register.75
Submissions and response
11.59 Many submissions expressed concern that children born with the aid of donor reproduction technology are presently being denied information about their genetic identity that is fundamental to their sense of identity. It was widely felt that they should be provided with more comprehensive information.76 One submission pointed out that
11.60 Submissions addressed the issue of whether the required information should be provided in separate legislation or in adoption legislation. One group of submissions considered that adoption legislation should be amended to provide for information rights for children born using donor embryos but not to regulate any other aspects of this area. The following submission represents this view:
Whilst I believe that the legal system should cover the issue of reproduction technology within a different legislation, I believe that the legislation should incorporate the information provisions outlined in the Adoption Information Act 1990 ... The children born of donor reproduction technology will have many issues to face, probably of more concern than we adoptees. Many of those issues will be the same, however there will be the added questions relating to the planned and clinical processes through which they were conceived.78
11.61 The above submission went on to suggest that adoption legislation should cover the information rights for the children of donor reproduction technology but not the issues stemming from the processes and procedures of the technology. Another submission proposed that the similarities between adoption and donor reproduction technology were so strong on the issue of the secret identity of the genetic parents, that
adoption legislation has a responsibility to the children conceived through these methods to ensure that they have access to their genetic histories and family information.79
This submission was otherwise of the view that issues associated with donor reproduction technology, other than access to information, should be addressed by specialised legislation.
11.62 Alternatively, other submissions supported the Commission’s view that specialised legislation should cover all issues in donor reproduction technology, including genetic identity and access to information.80
11.63 A further category of submissions strongly supported the notion of using adoption legislation to control the process of donor reproduction technology. One submission commented that:
[g]enetic material is, and remains the means for the production of a child of the persons from whom the material was taken ... If donated gametes continue to be used, the same eligibility should apply as with adoption.81
Conclusion
11.64 The question to be resolved here is whether adoption legislation is the suitable mechanism for resolving the legal status of children born as a result of donor reproduction technology and/or for ensuring their access to information.82
11.65 With respect to both the giving of consent and the applicants’ eligibility to adopt, two difficulties arise in so using adoption legislation. First, it is difficult to envisage how consent provisions could be applied. In adoption, birth parents are not allowed to consent until a set time after the birth of the child. Intended recipients of donor gametes may not wish to receive them until donors had consented to the transfer of legal rights and responsibilities. Secondly, the recipients of donated gametes may need to exhibit a different set of parenting skills from that generally sought in adoption, to take account of the fact that they have experienced the pregnancy themselves and the child may be genetically related to one of the parents.
11.66 More fundamentally, adoption is about the legal transfer of parental responsibility. However, with respect to children born through donor reproduction technology, because of various statutory presumptions, donors (the genetic parents) are not usually the legal parents. Who then is to give consent to the transfer of legal parental rights and responsibilities? Who are to be assessed as suitable recipients of these rights and responsibilities?
11.67 At a philosophical, rather than practical, level, it is inappropriate to link reproduction technologies, which aim to “cure” the problem of infertility, with adoption:
In the past, adoption has been seen as an alternative for couples who couldn’t have their own biological child. However, many adopted people and representatives of state welfare agencies feel that adoption and infertility are inappropriately linked. The primary concern of Community Services Department is to consider the best interests of the child. Children exist in their own right and adoption is no longer about providing childless couples with babies. The emphasis is placed on finding a home for the child rather than finding a child for a couple. Adoption does not necessarily solve the anxieties associated with infertility and in fact it may exacerbate these problems - an adopted child may be a constant reminder to the adoptive parents of their infertility.83
11.68 For the above reasons, specialised legislation, rather than adoption legislation, should cover all legal issues arising from the use of donor reproduction technology.
11.69 Nonetheless, there are ways in which the field of donor reproduction technology could learn from the experience of adoption. These were highlighted by several submissions. As one submission to IP 9 noted
one important lesson gained from adoption practice may be relevant - in that full and open information is essential to the child. Any child born as a result of reproduction technology or by surrogacy, must have entitlement to information about the circumstances and all aspects of their conception, birth and genealogy.84
11.70 The development of specialised legislative provisions governing donor reproduction technology should provide children with an assurance of their legal status and access to information about their biological history similar to that which is provided to adoptees.
RECOMMENDATION 109
Issues of genetic identity and access to information for children born with the aid of donor reproduction technology should not be dealt with in adoption legislation. The issues of any required consents, suitability for such procedures, or the keeping of, and access to, information surrounding donor reproduction technology should be the subject of a separate review and dealt with in specific legislation.
EMBRYO DONATION AND ADOPTION
Current law and practice
11.71 People may decide to donate embryos when they have fulfilled their own reproductive needs and wish to help other couples in the fertility program; or when they find the alternatives of destruction or indefinite storage of the embryos unacceptable.
11.72 As discussed above, the Artificial Conception Act sets up a presumption of fatherhood in the situation where a woman has undergone a fertilisation procedure using donor sperm or in vitro fertilisation, using an ovum produced by the woman and donor sperm. Presumptions of motherhood in the case of donated ova or embryos remain unclear in New South Wales.
11.73 However, as discussed in paragraph 11.14, the Status of Children Act sets out presumptions of motherhood and fatherhood for a child born as the result of a fertilisation procedure, including the procedure of transferring to a woman’s body an ovum (whether or not produced by her) fertilised outside her body or any other prescribed procedure for the assisted conception of children.85 The Family Law Act currently sets out who are the legal parents of a child born as the result of the implantation of an embryo in the body of a woman.86
Discussion Paper 34
11.74 The Commission raised for further discussion whether or not adoption legislation could be used to resolve some of the problems currently surrounding the donation of frozen embryos by one couple to another.
Submissions and response
11.75 Some submissions to DP 34 argued that people may feel pressured into donating excess embryos. Concern was expressed about the possibility of consanguineous relationships and the absence of protective legislation for donors. It was argued that using adoption legislation to control the transfer of embryos would be the most effective way of preventing consanguineous relationships from occurring and of protecting couples and clinics from potential legal liability.
11.76 It was further argued in submissions that, if embryo donation was controlled by adoption law, this would protect the best interests of the child and preserve information and records on the child’s genetic history. Of all the different types of donor reproduction technology, embryo donation has the closest affinity with adoption. Children born as a result of an embryo donation and children who have been adopted after birth are similar in that they are genetically unrelated to their social parents. They may have full-blood sisters and brothers growing up in other families. They are likely to be curious about their genetic identity and they may have an emotional or a practical need to access updated information concerning their genetic background.
11.77 However, most submissions felt that the adoption of a child and the adoption of an embryo were sufficiently different to warrant separate legislative controls.87 Part of this difference stems from the fact that in circumstances involving the donation of gametes or embryos, the process begins with the assessment of the needs of the adults involved whereas adoption should begin with the assessment of the needs of the child once it has been born. The purpose of adoption is to provide permanent care for children who cannot be raised by their birth parents. It focuses on the physical and emotional needs of children and aims to secure information for them in relation to their birth family. Embryo donation was also seen to be incompatible with adoption because it does not contain any possibility for the consideration of the child to be a part of the decision making process.
Conclusion
11.78 On the one hand, applying adoption principles to embryo donation would provide for counselling of, and giving information to, donating parents, assessing the needs of the child, and assessing the suitability of the receiving couple prior to a donation. Donating parents could take part in the selection of the receiving couple from a pool of those assessed as suitable adoptive parents. Social parents could be required to enter into an open adoption arrangement with genetic parents so that updated information could be exchanged.
11.79 However, if adoption legislation were a suitable mechanism for transferring parental rights and responsibilities of children born as a result of embryo donation, and ensuring their access to genetic information, this would require the legal parents of the child to be the donors of the embryo in order to establish who is required to give consent.88 Reaching such a conclusion is difficult because it relates directly to the question of when life begins. Have the couple who created the embryo already created a new life over which they have parental rights and responsibilities or does the new life only begin upon implantation into the receiving couple or at the birth of the child?89 The process of adoption does not serve to discover who is the legal parent, but is a transfer of legal parentage from someone who is clearly identified as the legal parent before the process begins.
11.80 It is not within the scope of this review to examine the issue of legal parentage in the situation of donated embryos. Separate State and Federal legislation already make, or propose to make, presumptions about who are the legal parents of such children.90 Adoption legislation operates to confirm the legal status of the social parents because they have not given birth to the child, whereas in the case of embryo adoption, the social parent would give birth to the child and is thus, in many cases, already the child’s legal parent.
11.81 Furthermore, it would be an extremely cumbersome procedure to define and regulate information rights in adoption legislation for children born as a result of embryo donation where no adoption has taken place. The information rights upheld by adoption legislation relate to the legal rights and responsibilities created by the adoption process. As for donor reproduction technology discussed above, it would be more appropriate to use the adoption model and develop specific legislation to address the child’s right and need to access biological information in embryo donation. The issues of any required consents, suitability for such procedures, or the keeping of and access to information surrounding embryo donation should be the subject of a separate review and dealt with in specific legislation.
RECOMMENDATION 110
Issues of genetic identity and access to information for children born as a result of embryo donation should not be dealt with in adoption legislation. The issues of any required consents, suitability for such procedures, or the keeping of, and access to, information surrounding embryo donation should be the subject of a separate review and dealt with in specific legislation.
FOOTNOTES
1. For example, see National Health and Medical Research Committee Ethical Guidelines on Assisted Reproduction Technology (AGPS, December 1996) which replace those issued in October 1982 entitled “In Vitro Fertilisation and Embryo Transfer” as Supplementary Note 4 (SN4) to the NHMRC Statement on Human Experimentation.
2. The New South Wales Law Reform Commission has already undertaken such a review: see New South Wales Law Reform Commission Artificial Conception: Surrogate Motherhood (Report 60, 1988) and Artificial Conception: In Vitro Fertilization (Report 58, 1988).
3. For example, unlike Victoria, Tasmania, South Australia, Queensland and the Australian Capital Territory, there is no legislation in New South Wales relating specifically to surrogacy arrangements. In Victoria, the Infertility Treatment Act 1995 (Vic), which has been assented to but is yet to be fully operational, regulates the use of fertilisation and donor insemination procedures, access to information about these treatment procedures, research into these procedures and infertility, and surrogacy agreements. The Act establishes an Infertility Treatment Authority to administer (among other functions) a central register of information of interest to the parties to these procedures and the licensing of procedure centres.
4. Many of the submissions to IP 9 and DP 34 agreed that there is a need for a legal framework to protect the rights and meet the needs of the children who have already been born as a result of reproduction technology and/or surrogacy arrangements, irrespective of the current legal status of these practices.
5. NSWLRC IP 9 at para 8.2.
6. Such fertilisation procedures include artificial insemination or in vitro fertilisation (IVF) procedures.
7. An ovum (plural ova) is the mature female sex cell, produced in the ovary. When fertilised by a spermatozoon, it is capable of developing into a new individual.
8. A sperm or spermatozoon is the mature male sex cell, produced in the testicle.
9. Technology has made it possible to divide the processes of parenthood, so that genetic input, fertilisation, gestation and birth can be separated, and each performed by different people. These divisions make it difficult to characterise the participants as “father” and (especially) “mother”. The following terms are used in this chapter:
biological parents - the people whose sperm and ovum are used to create the child;
birth mother - the woman who carries the child and gives birth, whether or not she has used her own ova or donor ova (also known as the gestational mother); and
social parent - the parents who raise the child and have the care of and responsibility for the child.
10. Although in altruistic surrogacies, costs such as medical expenses may be borne by the commissioning couple: P W Janu “Surrogacy Arrangements in Australia: Analysis of the Legal Framework” (1995) 9 Australian Journal of Family Law 200.
11. In general terms, in all States which have surrogacy legislation, being Victoria, Tasmania, South Australia and the Australian Capital Territory (Queensland presently prohibits all surrogacy), commercial surrogacy is prohibited and non-commercial surrogacy is permissible, although all surrogacy contracts are void and unenforceable: Janu “Surrogacy Arrangements in Australia: Analysis of the Legal Framework” at 204-207.
12. However, in New South Wales, the commissioning couple may commit an offence under the Births, Deaths and Marriages Registration Act 1995 (NSW) s 57 if they try to register the birth of a child born through a surrogacy arrangement as their own child. They may also breach the Children (Care and Protection) Act 1987 (NSW) s 42 and 44 which prohibit unauthorised long-term fostering of unrelated children.
13. CONCERN for People with Infertility Problems NSW Inc has received many inquiries from people interested in surrogacy arrangements and is aware of a number of arrangements that have taken place in recent years: Submission (2 August 1994) at 6.
14. Janu “Surrogacy Arrangements in Australia: Analysis of the Legal Framework” at 203-4: “Although there are no reported decisions of Australian courts relating to surrogacy arrangements it would be likely to be found by the courts, at common law, that any surrogacy contract is unenforceable as being contrary to public policy, although terms of a contract could be indirectly upheld if this was thought to be in the best interests of the child.”
15. See T Goulding (ed) The Law Handbook (5th ed, Redfern Legal Centre Publishing Ltd, Sydney, 1995) at 1097.
16. Being to 31 December 1996.
17. Artificial Conception Act 1984 (NSW) s 5.
18. s 3 and 5.
19. s 5(4).
20. s 6.
21. Children (Equality of Status) Act 1976 (NSW) s 11. But the presumption arising under s 6 of the Artificial Conception Act 1984 (NSW) prevails over any conflicting presumption arising by virtue of a Supreme Court declaration of paternity in s 13 of the Children (Equality of Status) Act 1976 (NSW): Children (Equality of Status) Act 1976 (NSW) s 18A(3).
22. Children (Equality of Status) Act 1976 (NSW) s 15(1). While the Supreme Court declaration is in force, the woman named in the declaration as being the mother of the child is conclusively presumed to be the mother of that child: s 15(4). For presumptions of parentage (both rebuttable and irrebuttable) generally see Children (Equality of Status) Act 1976 (NSW) and Artificial Conception Act 1984 (NSW) both intended to be repealed by the Status of Children Act 1996 (NSW): see Status of Children Act 1996 (NSW) s 37.
23. The Status of Children Act 1996 (NSW) was assented to on 29 October 1996, but has not yet been proclaimed.
24. New South Wales - Parliamentary Debates (Hansard) Legislative Council 29 May 1996 at 1639-1640, The Hon J W Shaw Attorney-General and Minister for Industrial Relations Second Reading speech on the Status of Children Act 1996 (NSW): “The purpose of the Status of Children Bill is to improve the current system for determining a child’s parentage which currently exists under the Artificial Conception Act 1984 and the Children (Equality of Status) Act 1976 ... First, by bringing the provisions of the Children (Equality of Status) Act 1976 relating to parentage presumptions and parentage testing procedures into conformity with the Family Law Act 1975, by bringing those parentage presumptions which apply in relation to children born as a result of artificial conception procedures up to date with current medical technology ... All Australian jurisdictions, apart from New South Wales, currently provide that when a woman gives birth to a child following an artificial inception procedure using donated ova, the birth mother is presumed to be the mother of that child. In New South Wales the position of a child born from donor ova is unclear.”
25. See NSWLRC Report 58 Recommendation 37: “Where IVF involves the use of donated ova, legislation should be enacted to determine conclusively the issue of maternity by stating that the woman who gives birth to a child will be presumed at law to be its mother.”
26. Status of Children Act 1996 (NSW) s 14(1)(b), (4), and (6); contrast Artificial Conception Act 1984 (NSW) s 5(1)(b).
27. s 14(3).
28. s 14(1)(a). His consent is presumed, although the presumption can be rebutted: s 14(5), 15.
29. s 14(2).
30. cl 14(4).
31. Family Law Act 1975 (Cth) s 60H and 60D.
32. A gamete is any germ cell, whether ovum or sperm. Sperm and ova donors may be known or unknown to the recipients. Donors are often relatives or may be other women on IVF programs who have collected surplus gametes during the course of the program.
33. See Chapter 4, in particular, step-parent and relative adoptions and private placement adoptions.
34. For the purposes of this discussion, “agencies” will refer to both the New South Wales Department of Community Services and the private adoption agencies, unless the context otherwise requires.
35. For presumptions of parentage (both rebuttable and irrebuttable) generally see Artificial Conception Act 1984 (NSW) s 5 and 6; Children (Equality of Status) Act 1976 (NSW) Part 3; and Status of Children Act 1996 (NSW) Part 3.
36. “Relative” is narrowly defined as grandparent, uncle or aunt of the child: Adoption of Children Act 1965 (NSW) s 6.
37. See Adoption of Children Act 1965 (NSW) s 18(2).
38. s 21(1) and (1A).
39. Referred to as “intrafamily” adoptions.
40. Adoption of Children Act 1965 (NSW) s 21(1A) and Supreme Court Rules (NSW) Pt 73 r 7A. Where no accredited social worker is available a report is prepared by a District Officer of the New South Wales Department of Community Services.
41. Adoption of Children Act 1965 (NSW) s 50; except for legitimate legal expenses, approved medical expenses or other payments authorised by the Director-General or the Court: s 50(2).
42. Adoption of Children Act 1965 (NSW) s 52; unless approved by the Director-General: s 52(2).
43. Adoption of Children Act 1965 (NSW) s 51. However, the offence under s 51 does not apply to intrafamily adoptions: s 51(2).
44. See Adoption of Children Act 1965 (NSW) s 54-58 for other possible offences. See further, Chapter 3 at paras 3.86-3.89.
45. Unless approved by the Director-General: Adoption of Children Act 1965 (NSW) s 52(2).
46. The argument has been put that parties to a surrogacy agreement always contemplate the eventual adoption of the child by the commissioning couple or, in the case of conception by intercourse, the birth father’s partner. Surrogacy arrangements have been classified as a form of independent adoption: see B Atwell “Surrogacy and Adoption: A Case of Incompatibility” [1988] 20 Columbia Human Rights Law Review 1 at 15.
47. See NSWLRC DP 34 at para 10.14.
48. See, generally, Family Law Act 1975 (Cth) Part 7 and, in particular, s 61D, 64B, 64C, 65C, 65D and 65E.
49. Including step-parent adoptions where the conception took place by intercourse between the commissioning father and the birth mother, and where the commissioning father is already named on the birth certificate as the child’s legal father.
50. It is possible to imagine a situation where the child’s birth mother has conceived the child without intercourse with the intended social father of the child. For example, the birth mother and her partner could have deliberately conceived the child with the idea that the child would be raised by the commissioning couple. In this case, the child’s birth father is not the same person as the child’s social father and it is important to acknowledge the relationship between the child and his or her birth father.
51. Presbyterian Women’s Association of Australia in New South Wales, Social Issues Committee, Submission (22 July 1994) at 8. Cardinal E Clancy, Archbishop of Sydney Submission (5 August 1994): “[L]egislation should prevent any circumventing through surrogacy arrangements of the present prohibition on private adoptions.”
52. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 37.
53. Re P [1990] NZFLR 385 and Re G (District Court, Invercargill, 3 February 1993, Adopt 6/92, unreported).
54. G Stewart “Adoption and Surrogacy” [1994] New Zealand Law Journal 384 at 384.
55. In Re G at 5.
56. In Re G at 5.
57. Stewart “Adoption and Surrogacy” at 384. Like the Adoption of Children Act 1965 (NSW), the Adoption Act 1955 (NZ) does not contain a clear prohibition on making an adoption order where the applicants have been found to have breached s 25 (prohibition against payments). C Rotherham ‘’Baby C: An Adoption Following a Surrogacy Arrangement” [1991] New Zealand Law Journal 18-19.
58. Stewart “Adoption and Surrogacy” at 386.
59. In Australia, a recent approach to the surrogacy issue is the Substitute Parent Agreements Act 1994 (ACT). This Act provides that any “substitute parent agreement” is void (s 9). However, if a child is born as the result of such an agreement, then the welfare and the interests of the child will be paramount (s 10). Parties who enter into substitute parent agreements that are non-commercial and involve no intermediaries or advertising are not liable for penalties under the Act, even though the agreement itself is rendered void.
60. Unlike non-related adoptions, there is currently no requirement under the Adoption of Children Act 1965 (NSW) for an agency to support an intrafamily application to adopt: s 18(2). Further, the Court may generally dispense with the making of a report by the Director-General on the proposed adoption before exercising its discretion to make an order for adoption: s 21(1A)(c).
61. Although a report by an accredited social worker is required by the Court: see Supreme Court Rules (NSW) Pt 73 r 7A.
62. See “Adoption of Children in Private Placements” Chapter 4.
63. See “Adoption by Step-parents and Other Relatives” Chapter 4.
64. Although not in surrogacy arrangements: see NSWLRC DP 34 at para 10.14.
65. See further, Chapter 2 generally.
66. See further, Chapter 3.
67. In Vitro Fertilisation (IVF) is an assisted fertility procedure using the woman’s own ovum or donor ova and the husband/partner’s sperm (AIH) or donor sperm (AID). The procedure involves the collection of oocytes (ova) from the ovaries. The ova are then fertilised outside the body. A resulting embryo is then placed inside the woman’s uterus to enable implantation and pregnancy.
68. Gamete intra-fallopian transfer (GIFT) is an alternative method to IVF which minimises the length of time gametes are outside the body. GIFT is the process whereby ova and sperm are threaded into a catheter with an air bubble between them. They are then placed into the fallopian tube where hopefully they fertilise and move down the fallopian tube to the uterus.
69. Artificial insemination by a donor (AID) is a procedure by which a woman is artificially inseminated with the sperm of a man other than her husband or partner. The sperm is usually obtained from an anonymous donor by means of masturbation and frozen in liquid nitrogen until required. When the sperm is to be used, it is then thawed. It is inserted into the upper vagina using a syringe: R Rowland “Women and Infertility Part 2: Infertility and Reproductive Technology: Some Issues” paper commissioned by the Victorian Women’s Advisory Council (predecessor to the Victorian Women’s Consultative Council) (Victoria, June 1988) at 37.
70. See Artificial Conception Act 1984 (NSW) s 5 and 6 and Status of Children Act 1996 (NSW) s 3 definition of “fertilisation procedure” and s 14.
71. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 36.
72. Since 1985, New South Wales clinics have had to retain donor information sheets for ten years, but there is no legislation to say records must be kept longer, or indefinitely. Recipients of donor sperm, eggs and embryos are given non-identifying information about the donor, such as build, hair and eye colour, but not details about medical history, ethnic background, occupation or interests.
73. However, guidelines issued by the National Health and Medical Research Committee in December 1996 recommend that “[c]hildren born from the use of ART [assisted reproductive terchnology] procedures are entitled to knowledge of their biological parents. Any person ... donating gametes and consenting to their use in ART procedure ... must be informed that children may receive identifying information about them”: Ethical Guidelines on Assisted Reproduction Technology (AGPS, December 1996).
74. Identifying information means the donor’s name. Non-identifying information means biological data, information about the donor’s health, education, interests, appearance and other information that does not allow the donor to be traced.
75. NSWLRC DP 34 at para 10.35.
76. ACCESS Australia’s National Infertility Network Ltd Submission (5 August 1994) at 4.
77. K Quail and L Marles Submission (25 June 1994) at 1-2.
78. E Berzins Submission (27 July 1994) at 15.
79. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 37.
80. The Law Society of New South Wales Submission (24 August 1994) at 12; CONCERN for people with Infertility problems NSW Inc Submission (2 August 1994) at 6.
81. Presbyterian Women’s Association of Australia in New South Wales, Social Issues Committee, Submission (22 July 1994) at 7-8.
82. Rather than solely applying the Artificial Conception Act 1984 (NSW) or Status of Children Act 1996 (NSW).
83. C Ewing Manufacturing Babies: What Reproductive Technologies Mean to Women (National Women’s Consultative Council, Canberra, 1993) at 9.
84. Centacare Catholic Community Services (Adoption Services) Submission to Issues Paper 9 (31 August 1993) at 22.
85. Status of Children Act 1996 (NSW) s 3 and 14. New South Wales - Parliamentary Debates (Hansard) Legislative Council, 29 May 1996 at 1640, The Hon J W Shaw Attorney-General and Minister for Industrial Relations noted on the second reading of the Status of Children Act: “The definition of “fertilisation procedure” in the bill has ... been broadened to include fertilisation procedures involving the use of both donor ovum and donor sperm, as well as the latest fertilisation procedures ... The definition has been drafted in such a way as to be wide enough to cover all children conceived as a result of fertilisation procedures.”
86. Family Law Act 1975 (Cth) s 60D(1) definition of “artificial conception procedure” and s 60(H).
87. For example, ACCESS Australia’s National Infertility Network Ltd Submission (5 August 1994) at 3; CONCERN for people with Infertility problems NSW Inc Submission (2 August 1994) at 6.
88. Compared with the presumptions of parentage under Artificial Conception Act 1984 (NSW) and Status of Children Act 1996 (NSW).
89. For a discussion of opposing points of view see S Watson “The Rashomon of Science: the Legal Position of the Foetus in New Zealand” [1994] New Zealand Law Journal 388-392.
90. Artificial Conception Act 1984 (NSW) s 5 and 6 and Status of Children Act 1996 (NSW) s 3 and 14; Family Law Act 1975 (Cth) s 60D(1) and 60(H).
