I attended a two day Surrogacy Conference in Brisbane this past weekend and it was very enlightening for me to observe and learn about the practicalities, challenges and issues of surrogates and intended parents. Organisations and overseas agencies were in attendance, these assist Australian intended parents to have a baby via surrogacy, both altruistic and commercial. The knowledge I gained extended to; what is the practice of ‘intended parents’ when they return to Australia after engaging in commercial surrogacy overseas and secondly; how intended parents source an altruistic surrogate in Australia, when a family member or friend is unwilling to be a surrogate (as its illegal to advertise for a surrogate). There were a small representation of lawyers in attendance.
It is a ‘hot topic and an area that continues to gain momentum in society and law. Interestingly, the Parliamentary inquiry into surrogacy laws in Australia has concluded and the Committee’s report released. Recommendations that resulted from the inquiry are as follows;
The committee’s inquiry revealed that many Australians are still engaging in illegal overseas commercial surrogacy due to the difficulties in negotiating surrogacy arrangements in Australia and that was evident at the Conference.
The inquiry recommended:
- Commercial surrogacy remain illegal. The view was taken, that even with the best of regulatory intentions, there is still significant potential for the exploitation of surrogates and children to occur. It was recommended that overseas commercial surrogacy arrangements undergo detailed scrutiny.
- Develop a nationally consistent legal framework in respect to altruistic surrogacy by means of the Australian Law Reform Commission (ALRC – 12 month enquiry) to develop a model national law to regulate altruistic surrogacy.
- The Inquiry also recommended the ALRC to consider whether all parties in altruistic surrogacy are to engage in counselling and obtain independent legal advice, the need for mandatory surrogacy agreements, the process by which the transfer of parental responsibility is undertaken, the need for adequate reimbursement for the surrogate and the need for a closed register of surrogates and intended parents administered by the Govt. Lastly, whether States and Territories should keep standardised statistical information on families formed through surrogacy to enable long-term studies of surrogacy’s effect on families
- The Committee considers there should be an audit of surrogacy destination countries to establish whether practices in those countries are consistent with proposed aspects of the national model law and this will be used when parents apply for Australian passports for child born as a result of surrogacy.
- The Committee recommended that the Migration Act 1958 be amended so that Australians seeking a passport for a young child to return to Australia are screened to ensure that no Australian or international surrogacy laws have been breached while outside Australia, and where breaches have occurred, that the Minister for Immigration be given the authority to make determinations relating to both the best interests and custody of the child. This is ‘interesting’ as in overseas commercial surrogacy cases, currently intended parents rely heavily upon the issuance of an Australian passport for the child, so that can be used to register the child with Medicare, schools, etc. Intended parents who engage in overseas surrogacy, do not, on a whole, seek to address parental responsibility issues that arise as a result.
- It was recommended that the ALRC should consider whether a child’s birth certificate should contain information on all gestational, genetic and intended parents, including a record that the child was born as a result of a surrogacy arrangement.
- Develop an Australian Govt website for all parties interested in altruistic surrogacy to provide advice and information, including; Medicare, social security & welfare payments, child support, paid parental leave etc
- Establish an interdepartmental task force to report in 12 months on parties who have engaged in overseas surrogacy arrangements with respect to; child knows its heritage, circumstances of birth, have ongoing relationship with the birth mother and siblings or genetic donors and should it be illegal to engage in commercial surrogacy overseas, which is aimed at more stringent investigative processes of overseas commercial surrogacy.
The surrogacy conference I attended, did not make mention of any of the above recommendations. However, it is safe to say that the above recommendations and further inquiry by the ALRC may result in more stringent scrutinisation of ‘surrogacy practices’ both altruistic and commercial.
The Committee did not make any recommendations for the screening of altruistic surrogates in Australia, which is a common practice overseas and is said to minimise ‘issues’ prior to pregnancy, during pregnancy, at birth and beyond.
I met and conversed with independent surrogacy counsellors from Sydney, Brisbane & Perth (not employed by IVF Clinics) at the conference, so if you have clients that require these specialised counselling services, feel free to contact me on (02) 9336 5399 or firstname.lastname@example.org and I am happy to refer.
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