Commencing at 9.30 am.

Assembly Hall, University of Sydney Law School

Ground Floor, Corner of Elizabeth,

King and Phillip Streets,

Sydney

I. INTRODUCTION

The New South Wales Law Reform Commission announces that it will hold a public hearing on the subject of Surrogate Motherhood. The hearing is to be held on Friday 14th October, 1988 from 9.30 am to 5.00 pm at the Assembly Hall, University of Sydney Law School, Ground Floor, corner of Elizabeth, King and Phillip Streets, Sydney.

Background

The inquiry into Surrogate Motherhood is the last of three projects in the Commission's reference called Artificial Conception. The previous two projects were:

• human artificial insemination (AI); and
• in vitro fertilization (IVF).

The first two projects have been completed. The report on human artificial insemination was presented to the Attorney General in June 1986. The report on in vitro fertilization (IVF) was tabled in Parliament by the Attorney General on 2 August 1988.

The Commission's project on surrogate motherhood is already well advanced. In 1986 the Commission undertook a nationwide public opinion poll on surrogate motherhood. The results of the survey were published in May 1987 in the Research Report Surrogate Motherhood: Australian Public Opinion. A Discussion Paper on surrogate motherhood was published in August 1988.

Nature and Role of the Public Hearing

The public hearing will conclude the consultative process of the Commission's inquiry into the need to make laws with respect to Surrogate Motherhood. The object is to provide a forum in which members of the public can express their views and contribute directly to the process of law reform.

The hearing will be open to all members of the public and submissions and suggestions for law reform on the issues raised in the Discussion Paper will be accepted whether written or given orally. The hearing is confined to Surrogate Motherhood only. The Commission reserves the right to reject any submission and to refuse to take any evidence or comment if it regards the material as not directly related to issues concerning surrogate motherhood or law reform.

Any comments made at the public hearing, or sent separately to the Commission, will be carefully considered when the Commission formulates its final recommendations on surrogate motherhood. The Commission often substantially revises tentative conclusions as the result of comments and submissions which it receives during the consultation process on its various projects. Although a tentative approach to one aspect of surrogate motherhood has been taken in the Surrogate Motherhood Discussion Paper, this approach does not have the final approval of the Commission. This approach has not yet been placed before the Attorney General of New South Wales for consideration, nor has it been adopted by the New South Wales Government.

After the public hearing, the Commission will prepare a report containing its final recommendations. This report will be presented to the Attorney General for tabling in the New South Wales Parliament.

II. THE SURROGATE MOTHERHOOD DISCUSSION PAPER

Purpose

The Commission issued the Discussion Paper to promote discussion on surrogate motherhood, and to invite community participation in resolving the many difficult issues connected with surrogacy. Copies of the Discussion Paper are available from the Commission.

Outline

The factors which might influence people to explore the possibility of a surrogacy arrangement are examined in Chapter 2 of the Discussion Paper. That chapter also discusses the manner in which such arrangements might be made. The Paper then discusses, in Chapter 3, the legality of different types of surrogacy arrangements under the existing law of New South Wales. Although the law makes no special provision for the regulation of surrogacy arrangements, established principles of common law and existing statutory provisions could regulate many aspects of the practice. There follows in Chapter 4 a consideration of the responses to surrogacy, where the Commission summarises the conclusions of official Inquiries on the subject in Australia and elsewhere, and reports on legislative activity. Chapter 5 discusses the informal responses to these issues. It presents the principal findings of the nationwide public opinion survey undertaken by the Commission. The ethical issues involved in surrogacy are examined in Chapter 6, which also addresses the question of whether legal regulation of surrogacy is appropriate. Finally, in Chapter 7, the Commission outlines some tentative views on some aspects of surrogacy, and indicates specific issues on which community comment is sought.

III. SURROGACY ARRANGEMENTS AND THE LAW OF NEW SOUTH WALES

Those who may wish to enter into a surrogacy arrangement in New South Wales today will receive no encouragement from the law. While there is no specific prohibition on surrogacy, there is also no special provision made for the regulation of these arrangements. The custody decision is likely to be made on general principles which have already been established for other purposes. Reference may be made to the arrangement in the course of the litigation, but only if it is thought to have a bearing on the suitability of the parties to have care of the child. In general the law may be described as indifferent to surrogate motherhood. It probably will not assist in the enforcement of an arrangement, but does not prohibit them either. There are, however, areas of the law in which the parties could be penalised for entering into a surrogacy arrangement. These have not been planned, but are merely principles and statutory provisions drawn from general family and contract law which have application to the circumstances of surrogate motherhood.

Other Australian Inquiries on surrogate motherhood to date have tended to take the view that surrogacy agreements should be void and unenforceable, and that commercial surrogacy agreements should be prohibited, as should advertising concerning surrogacy. A stronger stance against surrogacy is evident in Queensland. Proposals currently before the Queensland Parliament would prohibit all forms of surrogacy, including altruistic surrogacy.

IV. RESPONSES INVITED

The Commission would welcome contributions from the public concerning:

• information on the practice of surrogate motherhood in this State;
• the principles to be applied in making decisions on surrogacy; and
• a number of specific issues identified by the Commission, and summarised on pages 6-10 of this brochure.

Information

The Commission would welcome any information on the practice of surrogate motherhood in this State. Our knowledge of the incidence of surrogacy and the forms it takes is incomplete. Information is sought from members of the community and health care professionals with experience or knowledge of its practice to assist the Commission in establishing a fuller picture of the ways in which surrogacy is being used. The information may be supplied in writing or by telephone. It will be treated as confidential if this is requested.

Principles

As well as inviting comments on the substantive merits of the arguments for and against surrogate motherhood arrangements, the Commission seeks community response as to the principles on which decisions relating to surrogate motherhood should be based. These matters are discussed in Chapter 6 of the Discussion Paper.

V. SURROGACY: MATTERS FOR DECISION

Welfare of Child Paramount

The Commission has put one view quite firmly in the Discussion Paper. This is that in any legal proceedings in surrogacy the welfare of the child should be the paramount consideration. The principle governs all proceedings involving children in family law and it has been applied throughout the reference on Artificial Conception. Its application would mean that no agreement could be enforced which did not enhance the welfare of the child. To the extent that they did not coincide with the best interests of the child, the rights of the parties as given in a surrogacy agreement would be unenforceable. As in all custody proceedings, the adults involved would have no guarantee that the arrangements they made for the care of the child would be respected by the reviewing court. The Commission suggests that this principle is so fundamental in family law that it should not be changed to accommodate the needs of parties to a surrogacy arrangement.

Acceptance of the principle would have an important impact on the Commission's treatment of the reference for it would settle the important issue of custody. There are, of course, many other issues involving surrogacy which are addressed in this Discussion Paper.

Specific Issues

The Commission invites comment on the following issues:

1. If the Commission's view on the custody issue is accepted, all further decisions can be made on the basis that custody isnot in issue. if the Commission's view on this matter is rejected, the models considered below must accommodate the custody decision as well.

(a) Do you agree with the Commission that the question of custody should be determined by reference to the principle that the welfare of the child is the paramount consideration?

(b) If not, please give details of any alternative model proposed.

2. Which of the following models for reform do you prefer:

• Recognition and Enforcement: the provision of legal recognition and enforcement of surrogacy contracts;
• Prohibition: the prohibition of surrogacy arrangements, with appropriate penalties;
• Non-Interference: a declaration that surrogacy arrangements are contrary to public policy, thereby denying enforceability through the courts, but not interfering in private arrangements which parties might make between themselves; or
• Regulated Surrogacy: a detailed system of regulation of surrogacy arrangements

3. Recognition and enforcement.

If this model is accepted, does your acceptance extend to enforcing the terms of the agreement which would secure transfer of custody? if not, what types of terms would you allow to be enforced:

(a) those relating to health care during pregnancy?

(b) those concerning termination of the pregnancy?

(c) terms requiring the commissioning couple to pay for health care of the mother and child?

(d) those requiring payment of a fee to the surrogate?

(e) terms requiring payment of maintenance by the commissioning couple on their refusal to accept the child, or on the surrogate's refusal to transfer custody?

4. Prohibition

(a) Do you agree with the Commission that a total prohibition of surrogacy could not be enforced?

(b) If there were to be a total prohibition, should some aspects of the practice, or some parties to it, be exempted from any criminal sanctions applied?

(c) Is there a risk of "tainting" the child if a total prohibition is recommended?

(d) If you would recommend total abolition of surrogacy in this State, on what moral and/or social grounds would you base your recommendation?

(e) If the practice of surrogacy is to continue, should some aspects of it be prohibited?

(f) What aspects would you prohibit:

• the employment of intermediaries, whether paid or not?
• advertising for participants?

(g) Should altruistic surrogacy be exempted from the prohibition?

(h) IVF surrogacy:

• Is there a distinction to be made between IVF surrogacy used to produce a genetic child for the commissionin couple and its use for convenience?
• Should IVF surrogacy be available for single people or single sex couples or should it be restricted to married couples or those living in stable de facto relationships

5. Non-interference

(a) It is possible that, with some relatively minor statutory amendments to clarify questions of legal parentage, the whole issue of surrogate motherhood could be ignored by Parliament and left to develop through the common law. Apart from the questions of paternity and maternity, the interests of the child can be accommodated under existing family law. The Commission would welcome comment on whether surrogacy should be left to be dealt with by the courts.

(b) Those aspects of the surrogacy agreement which are ancillary to the custody issue might also be left for settlement by the courts, although with less confidence that they can be dealt with adequately. The likely gaps in the law will be in the area of equitable remedies used to enforce personal obligations. it is unlikely that the parties will be able to enforce those terms of the agreement which require personal performance. The Commission would welcome comment on whether these obligations should be made enforceable by statute. If not, is the award of damages sufficient compensation for breach of the ancillary terms of the agreement?

(c) Would this model leave the commissioning parents with worthless contracts which they are unable to enforce? Should the commissioning couple be given any better remedies by statute?

(d) Chapter 2 of the Discussion Paper sets out the Family Law Council's view that relatives should not be permitted to adopt their children. The Council's recommendation is that an assignment of the legal rights and obligations of parenthood by a transfer of custody should satisfy the commissioning couple's need for security. Trends in adoption practice in other parts of the world are cited in support. The Commission would welcome comment on this view.

(e) If the views on custody and adoption described in (d) above are accepted, is there any need to extend the statutory presumptions of maternity and paternity to a child born through the surrogacy process? The issues are discussed in Chapter 3 of the Discussion Paper.

(f) In whose name should the birth of the child be registered? Should provision be made to prevent the child having access to information on the register which might reveal the circumstances of the birth? Should access be permitted when the child attains 18?

6. Regulated surrogacy

(a) Should surrogacy arrangements be made under a detailed regulatory system?

(b) Which elements of a surrogacy arrangement should be regulated?

(c) Should the arrangements be subject to the approval of


- a court; or

- a Government agency?


(d) Under what circumstances should the surrogate mother's agreement to surrender the child be enforced?

VI. TIMETABLE

Comments and submissions on these matters should reach the Commission by 14 October 1988. If more time is needed, please advise by 30 September 1988. Comments in writing are preferred, but oral comments may be made by telephoning the Commission on [02] 228 7213.

The public hearing is to be held on Friday 14th October, 1988 from 9.30 am to 5.00 pm at the Assembly Hall, University of Sydney Law School, Ground Floor, corner of Elizabeth, King and Phillip Streets, Sydney.

Further Information:

NSW Law Reform Commission
Level 12, ADC Building
189 Kent Street, Sydney
Box 5199, GPO, Sydney 2001

Telephone: (02) 228 7213

Contact: William J Tearle (Research Director)
John McMillan (Secretary)