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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-09 Daily Xml
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STATUTES AMENDMENT (SURROGACY) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 2 April 2008. Page 2223.)

The Hon. SANDRA KANCK (20:10): I want us to be very clear about this bill. It is not about allowing or promoting surrogacy, because surrogacy is already happening. The key thing that this bill does is to ensure that the genetic parents are able to be named on their child's birth certificate as being the parents. At present the relinquishing surrogate mother and her husband/partner (who has had nothing whatsoever to do with the conceiving of the child) are listed on the birth certificate as the mother and father. As we have heard from others in this debate, this creates problems for the genetic parents and their child, particularly when it comes to signing permission notes for their child to be involved in school activities or to sign off on medical procedures for their child.

As it currently stands, the only way in which to resolve the continuing problems is for the genetic parents to adopt their own child. South Australia's Family Relationships Act 1975 was enacted to ensure that the donor of sperm was not counted as the father of the child. Now we have a situation arising from surrogacy where almost the exact opposite is required.

The circumstance that this bill envisages is that the genetic parents are the mother and the father of the child in every way except for two things: first, conception occurred in a test tube and, secondly, pregnancy occurred courtesy of a very special woman who cared enough about that couple to act, effectively, as an incubator. She has to be a very special person, because we are talking in this legislation about altruistic surrogacy; so no payments are allowed other than, for instance, medical costs associated with the pregnancy and the birth.

Surrogacy is a problem that will not go away. It is an age-old practice, and when I spoke in support of a similar bill two years ago I read from the Bible the story of the infertile Rachel and her husband Jacob. Rachel commanded her servant to allow herself to be impregnated by Jacob, with a resulting successful pregnancy. The Bible records two other examples of surrogacy. Jacob—who some of us might now regard as a serial offender—and his other wife Leah used Leah's servant Zilpah; also, Sarai and Abram used Sarai's servant Hagar for the same purpose.

Surrogacy was the biblical response to infertility, although I am inclined to think of it as being more like institutionalised rape because the three women concerned clearly were not consulted. The stories that follow in the Bible tend to indicate that, like forced adoption, the birthing mothers were not very happy about having to give up their children.

The point of these stories for me is that, first, surrogacy has been with us for thousands of years and, secondly, those with wealth and/or status have always been able to get around their infertility They will continue to do so. In present times, we see celebrities such as Madonna and Angelina Jolie being able to travel to developing countries and, effectively, buy children.

For whatever reason—putting off having children until a woman is in her late 30s or environmental pollution impacting the quality of male sperm, for example—there is increasing infertility in our society. IVF and its use of surrogacy is an option for an increasing number of childless parents.

I have made clear on numerous occasions that I am not a fan of IVF, but I cannot uninvent the technology. Given its existence, childless couples will access it, and surrogacy can be an outcome. I make clear that I react very unfavourably to the view expressed by some potential parents that they have the right to have a child: there is no such right. Nor do I like the idea that a baby is a purchasable commodity, but I am not in a position to be able to change those attitudes.

The reality is that couples travel to Sydney to access surrogacy technology that is legal there. I recently attended the annual John Kerin Symposium, which was addressed by, amongst others, Dr Derek Lok, the Clinical Director of Sydney IVF, and that clinic has dealt with a very small number of cases—60 since 2002. The symposium also heard about the legal aspects from local lawyer, Julie Redman, for whom I have a great deal of respect. She spoke of cases being taken (by her, I think, in the main) to the Family Court here in South Australia, where parentage orders are being successfully sought; however, those arrangements still do not change the legalities.

I know that there are a lot of 'what ifs' around this issue; they abound. What if the surrogate mother wants to keep the child? What if the surrogate mother wants to smoke and drink during the pregnancy and the genetic parents do not want her to? What if neither party wants the child when it is born? What if relationships break up or partners die? What if the pregnancy goes wrong and the child is imperfect in some way?

These are questions that will be raised, but they should not be used as an impediment. They should not allow us to be deterred from doing our parliamentary duty. We are legislators, and it is our job to find solutions to problems through legislation. If you think about it, adoption procedures have held many of the same concerns in the past, yet it was the chief source of children for infertile couples, at least for decades if not centuries. We cannot let the complexity of an issue be a reason to deter us from taking action.

Regulation in this area provides a way for surrogacy to be a controlled activity, much like legal abortion. It is something that will occur, so the best public policy is to accept it and regulate it. You can have backyard surrogacy or you can allow it under tight guidelines so that we know just what is happening and are aware of problems should they emerge.

As I mentioned before, the bill seeks to allow altruistic surrogacy only. Regulation would provide control and ensure greater responsibility, transparency and accountability. We need to address gestational surrogacy because, as I have previously argued, the parents of children born through surrogacy will continue to face myriad legal problems.

Further, as human fertility continues to decline, gestational surrogacy will increase with or without controls implemented by this parliament. This bill has been informed by the Social Development Committee's inquiry, so I think that any problems that might have existed in the earlier bill have now been ironed out.

I know that an argument will be made that we need to wait for nationally agreed legislation, but that could take years. I remind members that back in 1996 I introduced legislation for the labelling of genetically modified foods. I was told that we had to wait for a national approach—that was 12 years ago.

Given that surrogacy is happening now and that there are children caught up in the legal complexities, I believe it is appropriate for the parliament to get on with the job, pass this bill and make amendments at such time in the future as national legislation is agreed upon. The Hon. John Dawkins is to be commended on showing the leadership necessary to raise and pursue this issue in these increasingly neo-conservative times. I support the second reading.

Debate adjourned on motion of Hon. I.K. Hunter.

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