I. A NATIONAL SURVEY

5.1 In formulating its tentative proposals, the Commission wished to obtain information on Australian attitudes to the use of surrogacy arrangements. Little information was available on attitudes to surrogacy. Accordingly, the Commission undertook a nationwide public opinion poll on principal aspects of surrogate motherhood. The principle aspect of surrogacy arrangements on which public opinion was sought were the following:

• General attitudes to surrogate motherhood itself;
• Payment of the surrogate mother;
• Involvement of intermediaries in surrogacy arrangements
• Enforcement of such arrangements;
• Disclosure of the identity of the surrogate mother;
• Availability of surrogacy arrangements to persons other than married couples; and
• Availability of surrogacy arrangements for reasons other than medical difficulties.

5.2 The questions asked in the survey were drafted by the Commission, and the survey itself was undertaken by the Roy Morgan Research Centre Pty Ltd. The survey was made possible by the generous financial assistance of the Law Foundation of New South Wales. The results of the survey are contained in the Research Report Surrogate Motherhood: Australian Public Opinion published by the Commission in May 1987.¹ That Research Report also contains further information on the methodology adopted, together with the text of the questions asked in the survey.

5.3 The Commission is well aware that public opinion on a procedure as unprecedented as surrogacy may change as time passes and developments occur. The Commission’s survey represents the first exploration of public opinion in Australia (or elsewhere, so far as the Commission is aware) of the basic questions posed by surrogacy and suggests, at the least, that the public form of regulatory system for surrogacy rather than prohibition.

II. TIMING

5.4 The national opinion poll was conducted on two consecutive weekends, November 1-2 and November 8-9, 1986. It should be noted that since the survey was undertaken, two developments have occurred which might possibly have a bearing on attitudes to the issues canvassed in the Commission's survey:

• Vatican Statement

In February 1987, the Vatican issued a statement concerning Artificial Conception.² In that statement, issued by the Congregation for the Doctrine of the Faith and approved by Pope John Paul II, the Vatican urged that surrogate motherhood should be prohibited by legislation. Given that the attitudes reported in the Commission’s survey were not influenced by this statement, the survey results might prove to be a helpful bench mark against which later studies could be assessed.³

• Recent Surrogacy Litigation

Recent decisions of courts in the United States and England on surrogacy arrangements have attracted widespread publicity in Australia. In March 1987, an English High Court judge granted an adoption order to a commissioning couple with the surrogate mother’s consent. In April 1987, following protracted litigation between a surrogate mother and prospective parents who commissioned a child, a Judge of the New Jersey Superior Court awarded custody of a child (Baby M) born as result of the surrogacy arrangement to the commissioning couple. The New Jersey Supreme Court confirmed the award of custody to the child’s natural father, while taking a different view of the surrogacy contract itself.⁴ The media attention given to these decisions, and to prospective surrogate mothers since identified in Australia, might also have a significant effect on attitudes to the issues surrounding surrogate motherhood.

III. METHODOLOGY

5.5 Questions on surrogate motherhood were asked of 2476 people aged fourteen and over throughout of Australia. The questions for the Commission’s survey were included in “Consumer Opinion Trends”, an omnibus survey conducted weekly throughout Australia by the Roy Morgan Research Centre. Interviewing for the survey was conducted on two consecutive weekends by trained interviewers sent to randomly selected cluster points spread over the city and country areas of the six States and two Territories of Australia. Ten dwellings were visited at each cluster point. People were selected for interviewing at the pre-selected dwellings by a method which produces accurate cross-sections of each sex by age. The face-to-face interviews were conducted on Saturdays and Sundays between 9 am and 4 pm. To ensure the authenticity of responses, the survey organisation recontacted a sample of respondents and asked them to confirm their answers.⁵

IV. SUMMARY OF RESULTS

A. Approval of Surrogacy Arrangements

5.6 The survey first sought an opinion on surrogate motherhood as a means of providing children for married couples who cannot have children because of medical problems. According to the survey results, 16% of Australians expressly approved of surrogate motherhood as defined in that first question, and more than one-third did not object to it. Together, these two groups give a total of 51% expressing a view which is not opposed to surrogate motherhood. One-third of respondents objected to surrogate motherhood for married couples. A very small proportion did not have while 13% said that they needed to know more. Men and women expressed similar opinions.

5.7 Young married men and women without children were, as a group, most favourably disposed towards surrogate motherhood. More than 70% of this group either specifically approved of, or did not object to, surrogate motherhood for married couples, while only 15% objected to it.

5.8 A greater proportion of Australians professing no religion, or who belonged to a non-Christian religion, gave a favourable opinion on surrogate motherhood than did those who identified themselves as Christians. Federal voting intention appeared to make little difference to the attitude of people to surrogate motherhood.

5.9 The survey sought to determine whether or not attitudes to surrogate motherhood were affected by personal experience of infertility. It emerged that those who themselves had, or whose partner had, a fertility problem were more favourably disposed towards the use of surrogate motherhood.

5.10 Attitudes to surrogate motherhood expressed by residents of New South Wales were generally the same as those shared by people across Australia.

B. Payment of the Surrogate Mother

5.11 Some surrogacy arrangements contemplate payment of a fee to the surrogate mother ("commercial” surrogacy) while other surrogacy arrangements provide that the surrogate mother is to receive either no fee at all, or, at most, reimbursement for her medical expenses. These latter two types of arrangement might be described as “altruistic” surrogacy. The survey of Australians to these types of arrangements.

5.12 There is clearly support among Australians for providing some form of payment to the surrogate mother. Forty per cent of Australians would pay the surrogate mother her medical expenses plus an agreed fee. A further 34% considered that the surrogate mother should receive payment for medical expenses only. Only 17% thought that there should be no payment at all.

5.13 There were some differences between the views of men and women on this issue. More women considered that there should be at least some payment to the surrogate mother, while more men than women were in favour of “commercial” surrogacy.

C. Making Surrogate Motherhood Arrangements

5.14 Couples wishing to have a child by means of a surrogacy arrangement might not have access to a woman ready to act as a surrogate mother. Accordingly, it might be necessary for other people to assist in making introductions, and in advising on the terms of the agreement. Respondents were asked whether various persons or agencies should be allowed to arrange surrogate motherhood agreements.

5.15 There was a majority view that the parties themselves should be allowed to make the surrogacy arrangements. Similarly, there was majority support for the proposition that non-profit agencies (such as welfare organisations or a branch of a hospital) should also be allowed to make such arrangements. About 40% of Australians considered that the parties should be allowed to make surrogacy arrangements provided they had the approval of a government agency. There was very little support (17%) for government agencies alone making these arrangements. Very few people indeed (3%) considered that individuals and agencies who charge commercial fees and intend to make a profit should be involved in making surrogacy arrangements.

D. Enforcement of Surrogate Motherhood Arrangements

5.16 Arguably the most controversial aspect of surrogate motherhood arrangements is the question whether the agreement should be enforced if the surrogate mother refuses to surrender the child to the commissioning parents. Approximately one-third took the view that, in the event of such a dispute, the married couple should have first claim to the child. Support for the surrogate mother in such circumstances was slightly less (26%) , while another one-quarter considered that a court should decide the matter. Men and women held similar opinions on who should have first claim to the child.

E. Disclosure of the Identity of the Surrogate Mother

5.17 Another important issue that arises in surrogacy arrangements is whether the identity of the surrogate mother should be revealed to the child. This question is analogous to that arising in the context of adoption procedures, where it may become a matter of great importance for some persons, on learning that they were adopted, to seek out their natural parents. Accordingly, respondents in this survey were asked whether, after the child becomes and adult, the child be allowed to learn the identity of the surrogate mother.

5.18 There was very strong support for the view that the child should be entitled to learn the identity of the surrogate mother. Of all Australians, 71% supported disclosure of her identity, while only 17% would not have revealed her identity. Responses to this question displayed a marked trend with age. Younger people were most in favour of disclosing the identity of the surrogate mother. This support decreased with age.

F. Eligibility for Surrogate Motherhood Arrangements

5.19 Once views on surrogacy arrangements for married couples had been recorded, interviewees were asked for opinions concerning the availability of surrogacy arrangements to people other than married couples. At least two-thirds considered that people in the following four categories should be forbidden to make a surrogate motherhood arrangement:

• A male homosexual couple living in a stable domestic relationship;
• A female homosexual couple living in a stable domestic relationship.
• People under 18; and
• People who could not financially support a child.

5.20 Less concern was shown about the possibility of surrogacy arrangements for other groups in the community. Approximately half the population considered that people in the following three groups should be forbidden to make surrogacy arrangements:

• An elderly couple;
• A single man; and
• A single woman.

The survey revealed that there was less opposition in the community to surrogacy arrangements for unmarried couples living in a stable domestic relationship, and for people who already had children.

G. Surrogacy for Non-Medical Reasons

5.21 Respondents were initially asked for their views on the availability of surrogacy arrangements to married couples who could not have children because of medical reasons. The survey then went on to ask respondents for their opinion as to the availability of surrogacy arrangements for non-medical reasons. Accordingly, respondents were asked to consider the case of a woman who is capable of bearing a child, but for various reasons of convenience, would prefer a surrogate mother to bear the child for her. The three principal reasons of convenience which were canvassed in the survey were:

• Occupation (for example, where a woman does not want to take time off from her career during her pregnancy);
• Lifestyle (for example, where a woman or couple with an active sport or social life do not want to change their lifestyle during pregnancy);
• Cosmetic (for example, concern about appearance during and after pregnancy).

5.22 There was clearly very little support for surrogacy arrangements for these non-medical reasons. Indeed, almost 80% of people did not approve of surrogate motherhood for any of these non-medical reasons. Nevertheless, there was some support for them. It emerged that 11% of people approved of surrogacy for occupational reasons, while 7% approved of it for lifestyle reasons. Only 5% approved for cosmetic reasons. Men were rather more inclined than women to approve surrogacy arrangements for each of the three non-medical reasons advanced.

H. Further Particulars

5.23 Detailed results of the national public opinion poll are presented in the Commission’s Research Report. The results are also analysed according to a number of demographic and other relevant factors. The Research Report provides details of the overall results for Australia. In addition, results for New South Wales are given separately where appropriate, and are compared with the national response.

5.24 The Research Report concludes with a chapter which explores in more detail the influence of the religious affiliation of people on their attitudes to surrogacy arrangements. It also examines the views held by members of three groups whose opinions on surrogacy may be of interest:

• Young married people without children;
• People with fertility problems; and
• Younger single people (under the age of 35).

V. OTHER SURVEYS

A. 1983 Survey: Surrogacy: IVF and Custody

5.25 Another public opinion survey was conducted in July 1983 by the Roy Morgan Research Centre which focused on attitudes to the use of IVF with surrogacy. Of the total of 1108 people surveyed, 66% had heard of surrogate motherhood using IVF, and of this group 25% thought this use of IVF should be allowed, while 31% were opposed and 10% had no opinion. This group was also asked what should happen in the event the surrogate mother changes her mind. Forty per cent believed the surrogate mother should have first claim to the child, 35% favoured the commissioning couple having first claim and 25% were undecided.⁶

B. 1988 Surveys: Increasing Approval

5.26 Two further surveys of public opinion on surrogacy have been conducted during 1988. The results of these surveys suggest that there may have been an increasing public approval of surrogate motherhood since the Commission conducted its own survey in 1986.

5.27 In May 1988, the Morgan Gallup Poll asked 1025 interviewees for their opinion on surrogate motherhood, which was defined to include pregnancy achieved by artificial insemination or by IVF. According to the results published in The Bulletin, some 31% of respondents approved of surrogacy, whether or not the surrogate mother was to be paid. A further 24% approved, provided the surrogate mother received no payment (other than medical expenses). Accordingly, 55% of respondents approved of altruistic surrogacy. In this survey, 37% of respondents objected to surrogacy, while 8% could not say.⁷

5.28 Even greater support for surrogacy emerged from the a Newspoll survey conducted in June 1988 for results of The Australian. Some 33% of respondents to this survey approved of surrogacy involving a relative or friend, and without payment. A further 31% approved of both commercial and altruistic surrogacy, giving a total of 64% of respondents approving of altruistic surrogacy. Another 2% of respondents approved of commercial surrogacy only. In this survey, 28% objected to surrogacy, while 8% could not say.⁸

5.29 The two public opinion polls conducted in 1988 show significant support (55% and 64% respectively) for altruistic or non-commercial surrogacy. The level of support for commercial surrogacy (31% and 33% respectively) is also of considerable interest.

1. New South Wales Law Reform Commission Surrogate Motherhood: Australian Public Opinion (RR 2, NSW Govt Printer, 198‘).

2. Congregation for the Doctrine of the Faith Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation (1987).

3. Further discussion on the influence of religious affiliation is contained in chapter 9 of the research report.

4. For a discussion of the judicial decisions, see Chapter 3. See also Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421.

5. Roy Morgan Research Centre Pty Ltd Specifications of “Consumer Opinion Trends” (August 1986).

6. Gabor T Kovacs, Carl Wood, Gary Morgan and Margaret Brumby “The Attitudes of the Australian Community to Treatment of Infertility by In Vitro Fertilization and Associated Procedures” (1985) 2 Journal of in Vitro Fertilization and Embryo Transfer 213 at 215; see also, Margaret Brumby “Australian community attitudes to in vitro fertilization” (1983) 2 Medical Journal of Australia 650.

7. “‘Okay’ to surrogacy”, The Bulletin 12 July 1988 at 17.

8. “No-pay surrogacy favoured”, The Weekend Australian 18-19 June 1988 at 2.