The right to be a parent – regulating surrogacy in Australia

By Stephen Page

One in six Australians have issues relating to fertility. We ought to have a national surrogacy law in Australia to remove discrimination in current state laws. These laws continue to discriminate against those who need to use in vitro fertilisation (IVF) or surrogacy, based on where they live, their sexuality, and their relationship status. These laws disproportionately affect single and LGBT-intended parents. There are no national laws governing when people can have a child through the assistance of a surrogate mother.

Discrimination in state laws

Currently there are nine different sets of laws in Australia governing surrogacy. These laws generally prohibit the payment of a fee to a surrogate for her services (what is called commercial or compensated surrogacy), but allow her to be reimbursed for her costs incurred in the surrogacy (what is called altruistic or non-commercial surrogacy).

The ability to reproduce is probably the most fundamental of all rights. It is innate. Yet access to surrogacy is limited in much of Australia based on sexuality, relationship status or location.

Under Tasmanian law, ordinarily all parties to the surrogacy arrangement must live in that State. It’s too bad if your sister, whom you wish to carry your baby, lives interstate.

In the ACT, you can be LGBTI and desire a child, but you have to be a couple. Being single is not good enough to access surrogacy.

In South Australia, you must be married or in a heterosexual, de-facto relationship to access surrogacy. At the time of writing, there is a Bill before the South Australian Parliament proposing to alter surrogacy laws – but not to remove the discrimination. South Australia also discriminates so that fertility treatment such as IVF cannot be provided to single men, gay male couples, or lesbian couples who do not have medical difficulties in conceiving.

In Western Australia, surrogacy is available to heterosexual couples, single women and lesbian couples, but not to single men or gay male couples. Western Australia’s Health Minister commented on the review into that State’s Surrogacy Act, concluding last year that, while he did back a national approach, all was well and the Act did not need to change substantially.

There is no discrimination based on sexuality or relationship status in Queensland, NSW, Victoria, or arguably, the Northern Territory. NT does not have any laws concerning surrogacy.

The laws on fertility have not kept up with society. While a lesbian couple might desire a gay male friend to be a sperm donor, although he will not be a parent (and therefore have no liability to pay child support) he may have the ability to obtain orders in the Family Law Courts. It is not possible to have binding sperm donor agreements, for example. Often the couple will either take the risk, and use a known donor, or decide to take the less risky course of accepting sperm from an anonymous donor, supplied through an IVF clinic.

Even improving legislation brings unintended consequences. Although in society a child might have three parents, Australian laws currently only recognise two. If a lesbian couple has a child with the help of a known donor, someone will miss out on being named a parent.

This is clear from cases in New South Wales and Queensland, where initially the birth mother and the sperm donor were named on the birth certificate as the parents, but not the birth mother’s partner. The law has since been changed, and lesbian couples have been successful in naming the non-birth mother as a parent on the birth certificate and removing the sperm donors as father. But surely there should be a way to recognise all three parents, as has happened in some jurisdictions in the US, so that the vital role each of these people have in relation to the child can be recognised?

Change is on the horizon

Recently, the House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an informal inquiry on surrogacy. The Committee recommended that there be a Parliamentary inquiry into surrogacy, hopefully to remove anomalies and discrimination. The inquiry is long overdue, and needs to be comprehensive when considering our fertility laws.

The Committee, acknowledging that current disparities and discrimination can lead some Australians to seek surrogacy overseas, said that:

The desire to be a parent is one that is felt by people of all backgrounds, genders and cultures, and particularly, the desire to be a biological parent. As society evolves, so too does the longstanding definition of what makes a family and how a family is formed. Unfortunately, there are many circumstances that can hinder a person’s ability to fulfil this desire.

I recently gave evidence to the Committee. The words above contrast with those used by the Committee Chair when he put to me: “There is a sound argument that every child deserves a mother and a father.”

The response to the “sound argument” was best put by Chief Judge Pascoe of the Federal Circuit Court in his evidence to the Committee:

What a child is entitled to is loving parents. The fact that people are heterosexual does not necessarily make them good parents. As we saw in the baby Gammy case, that was to all intents and purposes a heterosexual couple but it would be difficult to say that the man in that relationship was a suitable parent.

The Chief Judge went on to highlight the real issue: are the parents people who will love, protect and care for the child?

The argument that every child deserves a mother and father echoes the debate in Queensland in 2012, when the then Attorney-General Jarrod Bleijie sought to wind back fertility laws so that singles and gay and lesbian couples would not only be banned from proceeding with altruistic surrogacy, but would be liable to a three-year term of imprisonment if they sought to do so. Mr Bleijie also sought to remove the parental recognition given to non-biological lesbian mums on their children’s birth certificates. As a result of opposition, the Attorney General withdrew the proposals for the criminalisation of surrogacy and the removal of recognition for lesbian mums (which, if successful, would have excluded Queensland from a national scheme). The discriminatory surrogacy proposal was then quietly shelved. Such arguments are outdated.

Hopefully the Committee’s call for a formal Parliamentary inquiry is heeded and we have the national conversation we need so that we can remove discrimination from our laws governing surrogacy and fertility issues.

Sensible change can’t come soon enough.

Stephen Page is a partner with Harrington Family Lawyers, Brisbane. Stephen was admitted as a solicitor in 1987 and has been an accredited family law specialist since 1996. He is an international representative on the American Bar Association’s Artificial Reproductive Technologies Committee. The opinions are his own.

Feature Image: Bethany Brown via Flickr