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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-11-14 Daily Xml
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SOCIAL DEVELOPMENT COMMITTEE: GESTATIONAL SURROGACY

The Hon. I.K. HUNTER (15:26): I move:

That the report of the committee on its inquiry into gestational surrogacy be noted.

Before providing an overview of the inquiry's findings and recommendations, it is worth defining what we mean when we talk about surrogacy. In the context of childbirth, surrogacy itself refers to a practice where one woman—a surrogate mother—carries a child for another person. It is important, however, to understand that there are two types of surrogacy: traditional and gestational. Traditional surrogacy requires no reproductive technology. The surrogate uses her own egg, and typically the commissioning father provides the sperm. Obviously it does not take much imagination to realise that there are a number of ways in which this can be done.

Upon birth the surrogate mother relinquishes the care of the child to the commissioning parents. It is important to stress that traditional surrogacy itself is not new. The inquiry heard that it has a long history in various cultures and, indeed, I am told that it is mentioned in the Old Testament of the Bible. On the other hand, gestational surrogacy is relatively new. It can be achieved only through the use of in vitro fertilisation (IVF), and the surrogate mother does not use her own egg. In most cases of this type of surrogacy the commissioning parents use their own sperm and eggs. The eggs are fertilized in vitro, that is, in the clinic or laboratory, and the resultant embryo is implanted into the surrogate mother's uterus. She carries a child to term and, upon birth or shortly thereafter, relinquishes it to the commissioning couple.

For the most part, the inquiry concerned itself with gestational surrogacy. It is useful to understand who would use gestational surrogacy. The evidence presented to the committee suggests that not too many people would. However, for a woman who has, for example, been born without a uterus, had a hysterectomy or whose eggs have been destroyed through perhaps cancer treatment or for whom carrying a pregnancy potentially could be life threatening to her and/or to her child, gestational surrogacy may be the only way she can have a child that is biologically hers and her partner's. Gestational surrogacy is far from being the easy option. The inquiry heard that families who pursue this path must navigate their way through a complicated legal minefield.

Before going further, I thank the Hon. John Dawkins for initiating this very important inquiry. The Statutes Amendment (Surrogacy) Bill 2006 that he introduced was the catalyst for bringing these matters to the attention of the parliament and to my committee. I also take this opportunity to thank other members of the committee for their hard work: from the other place, Adrian Pederick, Ms Lindsay Simmons and the Hon. Trish White, and from this chamber the Hons Dennis Hood and Stephen Wade. This inquiry was not easy, but the spirit of cooperation shown by members made it possible to work through the issues in a reasoned and sensitive way. I also acknowledge and thank the staff of the committee for their contribution: Robyn Schutte, Sue Markotić and Cynthia Gray.

On behalf of all committee members, I acknowledge and thank the many individuals and organisations that presented evidence to this inquiry, whether through written submissions or by appearing before the committee. Providing personal and private information about one's fertility to a group of politicians is not an easy thing to do. On behalf of the committee, I thank the individuals who came forward and spoke openly and honestly about their experiences. Their intensely personal accounts significantly deepened the committee's understanding of the issues before us.

The inquiry received 40 submissions, consisting of 22 written submissions and 18 oral presentations. Submissions came from medical and allied health professionals, lobby groups, research organisations, religious groups and bioethics organisations. Importantly, the inquiry also heard direct evidence from a number of individuals who have established or are hoping to establish a family through gestational surrogacy.

Not surprisingly, the committee heard opposing views about gestational surrogacy. Those who support its use argue that reproductive technology is safe and allows childless couples, who would not otherwise be able to do so, to have children. In contrast, its opponents argue that gestational surrogacy commodifies children, turning them into goods to be ordered and provided. They argue that it treats the surrogate mother as little more than an incubator.

Given the highly emotive and controversial nature of gestational surrogacy, the committee recognised very early on that it needed—as far as possible—to take a practical approach to the issue. It saw its task as two-fold. First, the committee needed to consider the status of children already born to South Australian parents as a result of gestational surrogacy procedures performed interstate. In doing so, the committee was determined to keep the best interests of the child at the forefront of its thinking. Secondly, the committee was required to consider the future of gestational surrogacy in South Australia. Again, the interests of the child were paramount in the committee's deliberation on this issue. This was a complex and challenging matter and one that the committee found difficult to resolve.

I turn now to the first issue: the status of children born as a result of gestational surrogacy procedures. As the law currently stands, 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, then her husband is listed as the child's father. The inquiry heard first-hand from several South Australian couples who had travelled interstate to undertake gestational surrogacy procedures.

Upon their return to South Australia they found themselves in a precarious legal position. Even though they are the genetic parents of the child, under current South Australian law they are not considered to be the child's legal parents. They are, therefore, unable to make important decisions on behalf of their child in such areas as medical treatment and school enrolment. They cannot arrange air travel without the consent of the surrogate mother.

In South Australia the only way for commissioning parents to have legal parental status of their own biological child is by adoption. The committee understands that the provisions relating to presumption of parentage contained within the current South Australian legislation specifically exclude sperm and egg donors from having legal parentage of a child born through the use of assisted reproductive technology. This was designed, in the original legislation, to protect doners of genetic material from some future claim of parentage.

While this may have been appropriate at the time this legislation was enacted, it is apparent that the 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 used to create an embryo are deemed to be donors and are therefore excluded from having legal parentage of their own genetic child.

The committee concluded that requiring a commissioning couple to go through an adoption process is totally unnecessary. It is also entirely unreasonable since it requires them to adopt what is, in effect, their own child. Moreover, the inquiry heard that there is nothing in the Adoption Act to deal with children born of gestational surrogacy; such arrangements were not even thought about when the Adoption Act was first drafted.

The committee agreed that children should not be disadvantaged or discriminated against in any way in their lives because of how they were conceived. It is clearly not in the child's best interests for their parents' legal status to be uncertain. Having examined the evidence relating to legal parentage, the committee has concluded that the current situation is untenable and that there is an urgent need for legislation to be enacted to ensure that commissioning parents are legally recognised as the parents of the child.

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 inquiry heard that the Australian Capital Territory provides a mechanism for the transfer of legal parentage from the surrogate to the commissioning parents after the birth of the child. The committee believes the ACT process is worth examining and has recommended that the state government look closely at this model.

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 permit surrogacy, others prohibit its practice; indeed, some are silent on the matter. Witnesses to the inquiry, including health professionals and persons who had participated in surrogacy arrangements, highlighted a maze of confusing, ambiguous and, at times, conflicting surrogacy laws and associated regulations. Indeed, this legal variation has been described as fragmented and illogical.

So, what is the current state of play? In Australia, five jurisdictions have legislation regulating surrogacy: Victoria, South Australia, Queensland, Tasmania and the Australian Capital Territory. In cases where there is no state legislation governing surrogacy, such as in New South Wales, the practice is regulated by the National Health and Medical Research Council's Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2004.

Surrogacy arrangements in each of the five jurisdictions are not legally enforceable. In other words, no part of a surrogacy contract is legally binding. It is unlikely, therefore, that the courts would force a surrogate mother ever to relinquish a child to the commissioning parents solely because this was agreed as part of a surrogacy arrangement. In all jurisdictions, commercial surrogacy arrangements are expressly prohibited.

Surrogacy is legal in the Australian Capital Territory. It is kind of legal in Victoria, but only if the surrogate mother is infertile, making it all but impossible to take place. However, travel over the border to New South Wales and you are able to participate in a gestational surrogacy arrangement; travel further north, and you will find that it is forbidden in Queensland. At present, Western Australia has no legislation dealing with surrogacy. It has, however, recently introduced a bill into parliament.

What about South Australia? Surrogacy is not illegal per se in this state. The strict criteria that surround its practice, coupled with legislative ambiguity, make it all but impossible to legally perform. The inquiry heard from a number of South Australians who had travelled interstate to undergo gestational surrogacy procedures. The bizarre part of this was that many procedures were undertaken in South Australia but, when it came to the embryo transfer, the couple was sent interstate for this part of the process.

In determining the future of gestational surrogacy in South Australia, the committee first examined the Statutes Amendment (Surrogacy) Bill put forward by the Hon. John Dawkins MLC which 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 a number of concerns were raised in relation to the bill. The committee was told that it did not fully recognise the rights of all affected parties and, if passed, may have contravened antidiscrimination legislation.

The Hon. J.S.L. Dawkins: May.

The Hon. I.K. HUNTER: The Hon. Mr Dawkins is right: the operative word is 'may'. After careful consideration of the evidence received, the committee recommended that the government prepare and introduce a new bill to make it possible for gestational surrogacy to take place in South Australia in certain circumstances and with the support of appropriate safeguards. The committee has also recommended that all individuals involved in surrogacy receive thorough counselling so that they are properly informed and fully understand the implications of their decision.

The committee is well aware that the success of gestational surrogacy arrangements will largely depend on the thoroughness of the social, medical and psychological processes undertaken, as well as trust, clear information, mutual respect and understanding from all parties involved in the process. 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.

History tells us that we have not always got this right. Fortunately, I think that we have all learned from past mistakes. Denying children access to information or, worse still, being secretive, and even dishonest, is very damaging. The committee would like parents affected by gestational surrogacy to be supported in having an open and honest dialogue with their child, at the appropriate age, about the circumstances of their birth.

The inquiry heard about the financial burden placed on couples having to travel interstate to undergo surrogacy procedures. This financial burden is compounded because both the commissioning couple and the surrogate mother are excluded from Medicare funding. The inquiry heard that the financial cost experienced by couples seeking surrogacy arrangements is significant. When asked by the committee to estimate the expense in pursuing a surrogacy arrangement (including interstate travel), one couple told the inquiry, 'We stopped keeping tabs at about $40,000.' Another witness estimated that the total cost was well over $50,000. The committee has called upon the state government to work with the commonwealth to resolve this problem.

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 Australian jurisdictions. Noting both the Pearce and McBain cases, in which South Australian and Victorian legislation restricting assisted reproductive technology to married couples was rendered invalid, the committee does not support the restriction of gestational surrogacy based on discriminatory criteria.

Surely, the quality of a relationship is a most important consideration. Being a good parent means creating a loving, caring and safe environment for children. No one group has a monopoly on this. No one group has a monopoly on perfect parenting, if indeed there is such a thing.

The committee believes that the government has a responsibility to ensure that adequate laws are in place to provide clear parameters for all parties involved in surrogacy procedures and to ensure that the best interests of the child prevail. We call on the government to do so. The committee is well aware that some sections of our community will look unfavourably at this decision. The committee accepts this. It is important, however, that this issue be kept in perspective. We need to make sure that any debate around this practice is not out of proportion with its incidence.

Evidence presented to the inquiry suggests that gestational surrogacy is not an issue that will affect many couples. We understand that the use of this procedure in the UK, for example, with a population of many times that of our country, is about 25 people a year. However, for those it does affect, it is hoped that the recommendations of the inquiry will provide an opportunity for these individuals to fulfil their dream of creating a family in a loving and caring environment. Medically indicated, altruistic gestational surrogacy will help create families. I do not think we need to be threatened by that.

Before concluding, I once again acknowledge the individuals who came forward and spoke openly and honestly about their personal experiences. I thank those people for sharing their experience with our committee.

Debate adjourned on motion of the Hon. S.G. Wade.

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