On the 25th July 1978, the first test tube baby was conceived in Britain. Since that date legislation has consistently been chasing the swift reproductive advancements of modern science and accompanying societal attitude shifts.
Surrogacy is an arrangement whereby a couple or single person enter an agreement with a woman who consents to carry their child to full term and surrender the child to the intended parents after birth.
Surrogacy arrangements can take the form of altruistic or commercial.
Altruistic surrogacy stipulates the birth mother must offer her services ‘out of the good of her heart’ and only be reimbursed for the sum of medical bills and reasonable costs. Conversely, commercial surrogacy prohibited by most Australian jurisdictions, allows the surrogate mother to receive a fee over and above her medical expenses. Despite being illegal, an increasing number of Australians take part in overseas commercial surrogacy paying total costs from a low of $30,000 in India to a high of $300,000 in the United States.
In Australia, commercial and altruistic surrogacy is regulated at the state and territory level:
Common across the state legislation is the acceptance of altruistic surrogacy.
However, agreements to enter altruistic surrogacy arrangements are not legally enforceable. The current Australian legislation across all jurisdictions provides that the birth mother cannot be compelled to perform her agreement to relinquish the child or to consent to the making of parentage orders.
It has been argued that criminal prohibitions on commercial surrogacy within Australia have never been properly explored or justified. The reform witnessed in 2010 starting with Queensland and New South Wales dealt excessively with altruistic surrogacy and failed to effectively consider both the negative and positive effects of criminalising commercial surrogacy.
Parentage orders are not adequate in altruistic arrangements
The Surrogacy Act 2010 (NSW) provides a framework for the Supreme Court of New South Wales to grant parentage orders transferring full legal parentage to the intended parents. However, many parents still fall through the legislative cracks.
The surrogacy agreement is the source of the court’s jurisdiction to make a parenting order. The agreement is not binding per se and the courts must ensure compliance with legislative requirements, most importantly the relinquishment of parental rights by the birth mother.
The application for a parentage order must be made in the period 30 days to six months after the birth with a report from an independent counsellor.
All jurisdictions require that there be a substantial personal connection between the intended parents and the jurisdiction in which the application of orders is made.
Parentage orders wholly absent for commercial surrogacy arrangements
Legislation in all Australian jurisdictions except South Australia and the Northern Territory criminalises parent’s involvement in commercial surrogacy agreements. The parentage orders under the Act do not cover commercial surrogacy arrangements. The prohibition on commercial surrogacy is said to continue, as it is not considered in the best interests of the child to be born through a commercial arrangement.
Though aimed at preventing exploitation of potential surrogates and preventing commoditisation of the child, the prohibitions restrict couples that do not have a willing altruistic surrogate mother and place unnecessary restrictions on the way in which women can exercise their reproductive capabilities.
Justified call for uniform legislation on commercial and altruistic surrogacy
Uniform laws are especially important in the case of commercial surrogacy where the outright ban leads to “forum shopping” in overseas jurisdictions.
International surrogacy adds several challenges to the already complex issue of legal parentage and consequently citizenship. Legally children born through commercial surrogacy overseas are not the legal children of the intended parents under the Family Law Act 1975 (Cth).
Under the 2010 and 2011 amendments to the Australian Citizenship Act 2007 (Cth) citizenship can be granted if at least one intended parent can prove genetic parenthood and relinquishment of parental rights by the birth mother. Children born to Australian parents through international surrogacy that do not provide for the relinquishment of parental rights have been consequently denied citizenship by descent. This has occurred in several Thailand cases with the intended parents having to obtain Thai passports and documents for their child and then once on shore applying to the family court for parentage orders. Helpfully the Family Law Act 1975 (Cth) allows persons interested in the welfare of the child to apply for parenting orders under section 60CC.
The inherent dangers of commercial surrogacy and the granting of parentage orders were pronounced in the 2010 case of Wilkie v Mirkja. In this case the birth mother was not able to be located and had given false details, the Family Court of Australia was forced to dispense with her consent and grant the orders.
The recent case of Hubert & Juntasa concerning a New South Wales couple entering a Thailand commercial surrogacy agreement concluded that ‘it is not clear that the offence has an effect in New South Wales.’ The child’s best interest receives paramount consideration and in most cases the court did not record that the intended parent’s behaviour was criminal. In Re Mark (an application relating to parental responsibilities) Brown J concluded that the illegality of the cross border commercial surrogacy agreement was not a relevant consideration.
It has been suggested that legalising commercial surrogacy in Australia would allow regulation of the industry and implementation of industry safeguards.
For the long term, commercial surrogacy should be legalised in Australia to create regulated health frameworks, stop ‘regime shopping’ and the exporting of commercial surrogacy overseas, where dangerous medical and legal situations are encountered.
Keeping surrogacy onshore would provide for the most effective harm minimisation.