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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2007-11-21 Daily Xml
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SOCIAL DEVELOPMENT COMMITTEE: GESTATIONAL SURROGACY

The Hon. P.L. WHITE (Taylor) (11:37): I move:

That the 26th report of the committee, on gestational surrogacy, be noted.

In the context of childbirth, surrogacy refers to the practice where one woman—that is, the surrogate mother—carries the child for another person. It is important to distinguish between two types of surrogacy: the so-called traditional gestational and gestational surrogacy. Traditional surrogacy does not necessarily require reproductive technology. The surrogate uses her own egg, and, typically, the commissioning father provides the sperm. Upon birth, the surrogate relinquishes the care of the child to the commissioning parents. This type of surrogacy is not new. The inquiry heard that, throughout history, there have been plenty of examples where one family member has carried a child for another infertile family member. Indeed, in the Old Testament we see examples of that.

Gestational surrogacy, on the other hand, is relatively new. In Australia, the first case of gestational surrogacy occurred in 1988 when Alice Kirkman was conceived using her mother's egg, donor sperm and then gestated by her aunt. This type of surrogacy can only be achieved through the use of in vitro fertilisation (IVF). The surrogate mother does not use her own eggs under that type of surrogacy. In most cases of gestational surrogacy, the commissioning parents use their own sperm and egg. The egg is fertilised in vitro and the resultant embryo is then implanted into the surrogate's uterus. The surrogate carries the child to term and, upon birth, relinquishes it to the commissioning couple.

For the most part, the inquiry concerned itself with gestational surrogacy. Gestational surrogacy is not a common practice nor is it an easy option. It is not something that can be done on a whim. The procedures involved are complex and time consuming. Regular blood tests are involved, as are fertility drugs, ultrasound examinations, and so on. There is no guarantee that a pregnancy will result. Families that pursue this path have to steer a course through a complicated medical and legal minefield. Despite this, for a woman whose ovaries are still producing eggs but for whom carrying a pregnancy would be dangerous or impossible, this type of surrogacy may allow the creation of her own genetic child.

This inquiry was instigated following the introduction of the Statutes Amendment (Surrogacy) Bill 2006 by the Hon. John Dawkins in the other place, and he was responsible for bringing these matters to the attention of the parliament. I also take this opportunity to thank other members of the committee in this house, the members for Morialta and Hammond, and, from the other place, the Hons Ian Hunter, Stephen Wade and Dennis Hood.

This inquiry presented many challenges to the committee which generated much discussion. Issues relating to reproductive technology will always be contentious as divergent views exist within our community. It was necessary for the committee to spend a considerable amount of time coming to understand the complicated issues involved before beginning its deliberations.

I also acknowledge the staff of the Social Development Committee for the support they provided during the course of the inquiry. Most of all, on behalf of the committee, I acknowledge and thank the many individuals and organisations who presented evidence to this inquiry, especially those individuals who came forward and spoke so candidly out of their own experience. Their very personal stories provided an important human dimension to this inquiry, and we sincerely thank them for their contributions.

In all, there were 40 submissions—22 written and 18 oral presentations—to this inquiry. They came from a variety of sources, including medical and allied health professionals, lobby groups, research organisations, religious groups and bioethics organisations. The inquiry also heard direct evidence from a number of couples who have established, or are hoping to establish, their families through gestational surrogacy.

Given the highly emotive and controversial nature of gestational surrogacy, it was not surprising that the committee heard opposing views. Those who support gestational surrogacy argue that reproductive technology is safe and allows childless couples to have children who would otherwise not be able to do so. In contrast, opponents of gestational surrogacy argue that it treats children as mere commodities and devalues the surrogate mother by treating her as little more than an incubator.

The committee recognised early on that it needed, as much as possible, to take a practical approach to the issue and it saw its task as twofold. Firstly, the committee needed to consider the status of children already born to South Australian parents as a result of gestational surrogacy procedures performed interstate. Secondly, the committee was required to consider the future of gestational surrogacy in South Australia. In all of this work the committee was determined to keep the best interests of the child at the forefront of its thinking and recommendations.

The committee's view is that there is a problem with the law as it currently stands when it comes to the legal status of children born in this way. As the law currently stands in South Australia, the surrogate mother (that is, the woman who gives birth) is listed as the mother on the child's birth certificate. If she is married, her husband is listed as the child's father, even though in these cases they are not the genetic parents of the child. The inquiry heard directly from several South Australian couples who have travelled interstate to undertake gestational surrogacy procedures. Upon returning to South Australia, those couples found themselves in an uncertain and precarious legal position. Even though they are the genetic parents of the child, under current South Australian law, they are not the child's legal parents. The implications are significant.

The parents of a child born through gestational surrogacy are unable to make important decisions in such areas as medical care, school enrolment, even air travel. In all those situations, the parents are required to obtain the consent of the surrogate mother. In South Australia, the only way for commissioning parents to have legal parental status of their genetic child currently is by adoption. So, the committee concluded that requiring the commissioning couple to go through an adoption process is entirely unreasonable since it requires them to adopt what is in reality their own genetic child. Furthermore, the Adoption Act does not deal with the children born of gestational surrogacy arrangements.

It is apparent that legislation has not kept pace with the changing nature of reproductive technologies. In the case of gestational surrogacy, the commissioning couple whose genetic material is typically used to create an embryo are deemed to be donors and, therefore, excluded from having legal parentage of their genetic child.

Having examined the evidence relating to legal parentage, the committee has concluded that current situation is inappropriate. It is clearly not in the child's best interests for their parents' legal status to be uncertain. Legislative reform should be implemented as a matter of urgency to provide children born of surrogacy arrangements the full protection of the law. The Social Development Committee has recommended that the government develop a process to allow the legal transfer of parenthood to occur without the need for the commissioning parents to adopt their own genetic child. The committee has called for birth certificates to be amended to reflect this transfer, listing both the commissioning parents as well as the surrogate mother in the interest of truth in birth certificates.

The committee also resolved that the legislation should ensure that all parties involved are fully informed about the personal and legal implications of the transfer of parenthood and freely consent to that transfer taking place; that in transferring that legal parentage from the surrogate mother to the commissioning parents, the best interests of the child should be the paramount consideration; that the person born through surrogacy arrangements have access to their genetic history and be provided with information about the circumstances of their birth; that the legislation is drafted so that it applies to children already born through surrogacy arrangements; and that appropriate training on the proposed operation of the act is provided.

In terms of the future of gestational surrogacy in South Australia, this was a much more challenging issue for the committee. The inquiry heard that surrogacy laws vary significantly across Australian jurisdictions. While some jurisdictions such as the ACT and New South Wales permit gestational surrogacy, others such as Queensland prohibit its practice.

The inquiry heard from a number of South Australians who had travelled interstate to access IVF gestational surrogacy procedures because such practices are illegal in South Australia. The illogical part of this is that, while a number of medical procedures were undertaken in South Australia, when it came to the embryo transfer, the couple were sent interstate for that part of the process.

In determining the future of gestational surrogacy in South Australia, the committee first examined a bill brought forward by the Hon. John Dawkins in the upper house. That bill sought to amend the Reproductive Technology (Clinical Practices) Act 1988 and the Family Relationships Act 1975 to permit non-commercial medically indicated gestational surrogacy for married heterosexual couples.

During the inquiry, the committee was told that this bill, if passed, may contravene antidiscrimination legislation. In fact, it was not only those opposed to gestational surrogacy who found difficulty with aspects of that legislation; some supporters of gestational surrogacy also argued against the bill for some unintended consequences, in terms of the legal, ethical and social complexity of surrogacy. One also argued that the bill favoured the commissioning parents at the expense of the child and the surrogate.

After careful consideration of the evidence received, the committee has recommended that the government introduce new legislation to make it possible for gestational surrogacy to take place in South Australia. It has called for the government to ensure that it enacts legislation that is consistent with state and commonwealth antidiscrimination legislation. While the committee has determined that, in certain circumstances and with the support of appropriate safeguards, gestational surrogacy should be allowed, it has certainly not recommended that it be allowed under any circumstance. The committee has recommended that all individuals involved in gestational surrogacy receive thorough counselling so that they are properly informed and fully understand the implications of their decision.

In keeping the rights of the child at the forefront of its thinking, the committee was clear in its position that children should not be denied access to information about their genetic background and the circumstances of their birth. The committee would like parents affected by gestational surrogacy to be supported in having an honest and open dialogue with their child about the circumstances of their birth.

The inquiry into gestational surrogacy is timely. At a national level, the Standing Committee of Attorneys-General has agreed to consider the possibility of introducing consistent surrogacy laws across all Australian states and territories. The committee certainly supports this position and would like to see consistency in gestational surrogacy legislation across all jurisdictions.

In recommending that the state government introduce a bill allowing the use of non-commercial medically indicated gestational surrogacy in South Australia, the committee called for the provision of a set of clear standards, processes and principles to underpin the legislation and support the safety and well-being of all parties involved in the process and for counselling to be made mandatory for all parties involved in the arrangement; and recommended that, as part of the development of a bill pertaining to gestational surrogacy, the state government should initiate a review of the Reproductive Technology (Clinical Practices) Act 1988 and other relevant legislation to, amongst other things, amend current eligibility criteria to allow fertile women wishing to act as the gestational surrogate mother access to reproductive technology.

The committee also recommended that the state government encourage the commonwealth to review Medicare arrangements to ensure that rebates are available to a fertile woman who is acting as a gestational surrogate mother and are consistent with any amendments made to the South Australian legislation pertaining to gestational surrogacy.

In conclusion, I will state the obvious, perhaps, that gestational surrogacy is, without a doubt, a matter that attracts strong opinion and engenders much emotional debate. The committee recognises that some sections of our community will be critical of its recommendations. The committee accepts that. Nevertheless, the committee has thought long and hard about gestational surrogacy. Its deliberations were not quick nor without considerable debate.

In putting forward its recommendations, the committee has chosen to avoid being too prescriptive in its recommendations regarding legislation. It has, however, provided an important framework and a way forward for these complex issues to be tackled. The committee believes that the government has a responsibility to ensure that adequate laws are put in place to provide clear parameters for all parties involved in gestational surrogacy procedures. In doing so, it must ensure, above all else, that the best interests of the child prevail.

Mr PEDERICK (Hammond) (11:52): I, too, rise as a member of the Social Development Committee. I appreciate the words of the member for Taylor. This was one of the tougher topics to be put before a diverse committee. When I say that this was a diverse committee, I mean that its members had many opinions as to which way we should go with gestational surrogacy. Obviously, some conflicting views were held right to the end. I would just like to take note of the bill introduced by the Hon. John Dawkins, in the other place, the Statutes Amendment (Surrogacy) Bill 2006, and that was because of constituents who obviously were looking for a way so that they could have children. Anyone in this house who has experienced the joy of childbirth, I could not think of any happier experience.

The Hon. R.G. Kerin: The joy of having children I think you mean.

Mr PEDERICK: Joy of having children, yes; thank you member for Frome.

Members interjecting:

Mr PEDERICK: Well, I didn't find conception too bad, either!

Members interjecting:

Mr PEDERICK: This is a very serious subject, members. Be that as it may, I would just like to congratulate all the people who presented submissions to the committee. There were some very emotional stories, about not just the travel they had to do interstate so they could have children legally through gestational surrogacy but also the cost involved, and it was a fairly round figure of around $50,000 to go through this procedure. So, it just seems ridiculous to restrict the citizens of South Australia the opportunity to access this technology legally, when obviously if they are determined to have children they will go interstate, they will borrow against the family home or find other ways to find the money to have children, and, quite frankly, who could blame them.

One thing we do have to make sure about, and it was a recommendation from the committee, is that the child's rights are one of the main things set in stone, that they have the right, if they wish to, to find out where they did come from. These days children as they grow older and as they go through life ask more and more questions, and I believe that to be a very good point. We have to clear up the fact that birth certificates are, quite frankly, all over the shop. The surrogate mother at this stage in legislation in South Australia becomes the mother on the birth certificate, and her partner, or husband, which has a lot of legal ramifications down the track, and obviously family issues.

There are plenty of other legislative areas in Australia that have put through similar legislation. We do need to try to align these legislations and get this aligned across the country. We also have to make sure—and this is something that came out of the committee—that there is no profiteering as far as surrogacy is concerned, that it is for the couple so that they could have a child through these procedures. But as far as that is concerned, there has to be adequate counselling for everyone involved, whether they be the commissioning parents or the surrogate mother, and obviously their families need to have adequate counselling as well, because, as has been seen in court action overseas, some people, although they are having someone's else's child, suddenly decide that it is theirs. So adequate counselling needs to take place for all parties involved.

We have to urge the commonwealth to review Medicare arrangements, to make gestational surrogacy more accessible for people right across the spectrum. As the member for Taylor indicated, there was a divergent amount of views about who should have access to this technology. I know that the committee made a statement that they did not want to be discriminatory in who could access this technology, but I have a personal view that it should be limited to heterosexual couples. But that is just my view, and, as I said, there were plenty of divergent views across the committee.

As far as the introduction of legislation is concerned, I urge the government to get on with it early in the new session next year, and, if there is any dithering on this legislation, I urge the Hon. John Dawkins, in the other place, to reintroduce legislation, so that we can just get on with this so we can help the couples who do want to access this technology and make gestational surrogacy legal in South Australia.

I would like to thank everyone involved on the committee and everyone who spoke to the committee. It certainly was one of those tougher committee topics to discuss, but it is always good to have robust debate and get on with the job. I commend the motion to the house.

Debate adjourned on motion of Hon. L. Stevens.

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