I. INTRODUCTION

7.1 The Commission invites community comment on the approach to be taken in this State to the questions raised by surrogate motherhood. As was mentioned in Chapter 4 of this Paper, Australian Inquiries to date have tended to take the view that surrogacy agreements should be void and unenforceable, and that commercial surrogacy agreements should be prohibited, as should advertising concerning surrogacy. A stronger stance against surrogacy is evident in Queensland. Proposals currently before the Queensland Parliament would surrogacy, including altruistic surrogacy.

Il. THE OPTIONS

7.2 In their work The Reproduction Revolution: New Ways Of Making Babies, Professor Peter Singer and Deane Wells identified four principal approaches to the issue of surrogate motherhood.¹ These approaches are as follows:

• the provision of legal recognition and enforcement of surrogacy contracts;
• prohibition of surrogacy arrangements, with appropriate penalties;
• declaration that surrogacy arrangements are contrary to public policy, thereby denying enforceability through the courts, but not interfering in private arrangements which parties might make between themselves; or
• a detailed system of regulation of surrogacy arrangements.

A. Recognition and Enforcement

7.3 The most positive form of to surrogacy arrangements would contracts as being valid, and to permit them to be enforced through the courts. If this view were to be adopted, it would leave open the possibility that, in the event of a dispute between the commissioning couple and the surrogate mother following the birth of the child, a court might be asked to enforce the contract by ordering the surrogate mother to deliver the child to the couple. As was indicated in Chapter 3, courts are reluctant to award specific performance of other forms of contracts for personal services. The courts would be unlikely to order a surrogate mother to hand over the child after birth. The more usual remedy for failing to perform a contract is an award of damages by the court. As Singer and Wells point out, it is scarcely likely to be helpful remedy. The couple would probably prefer to have a child, rather than monetary settlement, and, in any event, it is doubtful that the surrogate mother would have the means to meet the damages awarded by the court.² It may, of course, assist the surrogate mother in a situation where commissioning parents have failed to make payment under the contract.

B. Prohibition

7.4 Another obvious option is to prohibit surrogate motherhood arrangements, either entirely (as has been suggested in Queensland), or particular varieties of surrogacy arrangement (for instance, those made on a commercial basis, or those involving in vitro fertilization). Legislation prohibiting surrogacy does have the appearance of simple, positive action, particularly when it can call in aid strongly-expressed public opinion.

7.5 Prohibition raises its own problems. Its effectiveness is questionable. The United Kingdom Government doubts its effectiveness after more than five years of consideration. Professor Freeman has argued cogently against the use of the criminal law, pointing out that all such legislation has the capacity to do is to encourage circumvention and, if and when this fails, create what has come to be called “a crime tariff”. In other words, the imposition of criminal sanctions would shield “the sharks” from potential competition, thereby putting up the price and reducing the quality of the service offered.³ The members of the Warnock Committee were anxious to ensure that children were not born “subject to the taint of criminality”.⁴ These concerns are worthy of serious consideration.

7.6 The impact of criminal sanctions, and the possibility of punishment, would be particularly severe on those persons who had entered into altruistic surrogacy arrangements. As Professor Freeman has pointed out:

There is no evidence that commissioning parents are anything other than good loving parents well able to take care of the child’s needs and welfare. Indeed, given the circumstances (the difficulties they have had to overcome, the planned nature of the conception), they may be better than average parents.⁵

Singer and Wells expressed a similar view:

The parties to altruistic surrogacy arrangements] may have acted unconventionally, but their motives were laudable, and there is nothing in what they did that threatens the fabric of our society or any individual members of it. Perhaps not every woman would want to act as [the surrogate mothers] did; but we can see no basis for criminal sanctions against those who do. Of course, even in the best of circumstances things can go wrong. Things are markedly less likely to go wrong, however, motivated by love and kindness, and act without demanding a reward.

... To prevent the expression of human altruism, where that altruism could be harnessed to the increase of the human happiness, just because of the abuses that would occur where profit and not love became the motive, would be to throw the baby out with the bath water.⁶

7.7 The next issue for consideration is whether commercial surrogacy arrangements should be prohibited and, if so, whether the criminal prohibitions should extend to all those who are involved in a commercial surrogacy arrangement (including the surrogate mother and commissioning couple), or only to intermediaries who seek to profit from the arrangement. This also involves a discussion of what constitutes a “commercial arrangement”. Is it the element of profit-making that should render the arrangement unacceptable? Should payment of medical expenses and other necessary out-of-pocket items be sufficient to bring the transaction within the “commercial” class?

7.8 A surrogacy arrangement which employs IVF technology to produce a child who is genetically the child commissioning parents may raise issues different form those involved when the child ids unrelated to the couple. There are many who would approve the use of surrogacy for this purpose who would not support its use otherwise. Their acceptance would extend to allowing the commissioning mother to share in a procreative process which she could not otherwise enjoy. They are, however, less persuaded of the benefits of surrogacy when another person’s child is being produced for the couple, even if the child is genetically related to the commissioning husband. In these cases , they may insist that the couple resort to adoption or foster care rather than create a new child who must be removed from its genetic mother for their benefit. These issues are dealt with further below.

C. Non-Interference

7.9 Another option would be to declare surrogacy contracts to be contrary to public policy. On this approach, the contract would not be enforceable through the courts, but neither would the state interfere in any way with arrangements that are made between the parties. In other words, while the courts would not assist any party by enforcing the contract, or by awarding damages for non-performance, neither would there be any risk of criminal penalties attached to making these arrangements. The parties could freely seek and obtain medical services and various forms of counselling and other relevant assistance. Singer and Wells point out that this approach would leave the commissioning couple with inadequate protection. They would find themselves with worthless contracts which the courts would refuse to enforce.⁷ If no legislation is enacted on the subject of surrogacy, this would probably involve the endorsement of this alternative course.

D. Regulated Surrogacy

7.10 The next main approach which has been suggested would permit surrogacy under a system of regulation. This is the approach adopted by the Ontario Law Reform Commission, and it was a possibility left open by the Chalmers Committee.⁸ This differs from complete legal recognition and enforcement of surrogacy arrangements in that the terms of the arrangement would not be left to the agreement of the parties, but would he established and supervised by an official source, such as a government agency. Such a system could be expressed in broad principles or in minute detail. It might be constituted solely by legislation, or through a mixture of legislation, guidelines and other controls. This is the approach favoured by Singer and Wells ⁹ and by Professor Freeman.¹⁰ Professor Freeman summarised his views by saying that , in the last resort,

...what will, or should, concern us is not that non-fertile couples seek satisfaction by employing a surrogate, for we will not be able to stop them so doing, but how they set about this.¹¹

III. THE WELFARE OF THE CHILD

7.11 There is one principle of law which dominates when children are involved. This is that the welfare of the child is the paramount consideration. Application of the principle does not mean that the interests of all others are ignored or overridden. It does mean, however, that in the final analysis, those custodians or that course of action will be chosen which, in the opinion of the court, will offer the most promising opportunities for the child before the court.

7.12 Thus, for example, there is no presumption that biological parents will be better equipped than others to care for the child, although common experience suggests that this is often the case. There is also no presumption in favour of the mother as the preferred custodian, although it is common experience that she will have bonded more closely than anyone else to the very young child. These and other matters of common knowledge or belief , as well as current theories of child care, will influence a court, in any dispute over custody. However, the court’s function is to assess the suitability of the parties as parents for the child. The biological, social, educational and financial characteristics of the parties will affect the court’s decision, but only in so far as they are likely to enhance or detract from the child’s prospects.

7.13 It is with these matters in mind that the Commission puts forward the tentative view that whatever scheme is adopted for the regulation of surrogacy arrangements, it must recognise and support this primary principle, that the welfare of the child is the paramount consideration. The major impact of this view, if it is accepted, is that the terms of the surrogacy agreement can have no bearing on the custody decision. In the Commission’s view, this means that no change need be made in current judicial attitude. The only relevance such a contract can have to the custody decision is its usefulness in assessing the character of the contracting parties, and their suitability as parents for the child.

7.14 The other aspects of the agreement which do not influence the custody decision are discussed in Chapter 3.¹² It may be that those terms of the agreement which do not touch on the question of custody should be enforceable. It may be that terms such as those providing for payment of the surrogate mother, whether the payment is by way of remuneration or to enable her to meet her expenses in having the child, should be enforceable independently of the rest of the agreement. if surrogacy is to be permitted to continue, it may be that the commissioning couple should be able to enforce terms which require the mother to undergo regular medical examinations to refrain from doing certain things believed hazardous to foetus. There may be terms of the agreement which regulate parties’ rights if the question of abortion arises. There also be terms which seek to exempt the surrogate mother or father from liability for future maintenance of the child.

7.15 These matters are open for discussion and your views are sought on the desirability of making certain remedies available. It is suggested, however, that the question of whether surrogacy agreements should be enforceable on the issue of custody should not be open to debate because the custody decision should not be made on any other basis than that the welfare of the child is the paramount consideration. The Commission invites comment on the position taken on this issue.

IV. IVF AND SURROGACY

7.16 Perhaps the most attractive aspect of surrogate motherhood is that, combined with IVF, it offers an infertile couple the opportunity of having a child of their own. There are medical conditions in which a woman who is otherwise infertile may be able to produce ova for use in an M surrogate birth. These, together with the medical conditions which make it unsafe for a woman to attempt to carry the pregnancy through to birth, are described in Chapter 2.¹³ It may also be that the commissioning couple wish to use a surrogate mother for reasons unrelated to infertility, possibly for reasons of career prospects or vanity.¹⁴

7.17 The Waller Committee condemned the use of surrogacy in combination with IVF.¹⁵ While seeing the benefits to the commissioning couple of producing a child who was genetically theirs, the Committee rejected this along with all other forms of IVF surrogacy.¹⁶ The reasons given were not limited to surrogacy which would produce the genetic child of commissioning couple. The Committee thought that even altruistic IVF surrogacy was objectionable because it involved “the deliberate manufacture of a child for others”.¹⁷ The Committee thought this could not be in the best interests of the child, particularly if the arrangement resulting in a custody dispute in which the surrogate mother wished to withhold the child from its genetic parents.¹⁸

7.18 The Warnock Committee was also unenthusiastic about IVF surrogacy used to produce a genetic child for the commissioning couple. It recommended that such cases be subjected to the same rules as it recommended should apply to ova and embryo donation. Those rules would assign maternity to the surrogate mother, leaving the law on adoption to resolve any difficulties which might result for the genetic mother.¹⁹ The Committee thought it unlikely that many would participate in such arrangements in view of its recommendation that they should be prohibited. The Committee’s recommendation also suggested the imposition of criminal sanctions on those recruiting women for surrogacy arrangements or acting as intermediaries in the making of such arrangements. The prohibition was both profit and non-profit making organisations.²⁰

7.19 The Committee was of the clear and unanimous view that “surrogacy for convenience alone, that is, where a woman is physically capable undergo pregnancy, is totally unacceptable”.²¹ The Ontario Law Reform Commission joined the Warnock Committee in this view. It said “our sole purpose in allowing individuals to pursue surrogate motherhood arrangements.....is to respond to infertility, not to afford individuals the opportunity to satisfy their lifestyle preferances”.²² The Ontario Commission was only prepared to make surrogacy available as a last resort, to those who could prove that “there is a medical need not amenable to alleviation by other available means”.²³

V. INFORMATION REQUESTED

7.20 The Commission would welcome any information on the practice of surrogate motherhood in this State. Our knowledge of the incidence of surrogacy and the forms it takes is incomplete. Information is sought from members of the community and health care professionals with experience knowledge of its practice to assist the Commission in establishing a fuller picture of the ways in which surrogacy being used. The information may be supplied in writing or telephone. It will be treated as confidential if this is requested.

VI. ISSUES FOR DISCUSSION

7.21 The Commission invites comment on the following issues:

1. If the Commission’s view on the custody issue is accepted, all further decisions can be made on the basis that custody is not in issue. If the Commission’s view on this matter is rejected, the models considered below must accommodate the custody decision as well.

(a) Do you agree with the Commission that the question of custody should be determined by reference to the principle that the welfare of the child is the paramount consideration?

(b) If not, please give details alternative model proposed.

2. Which of the models for reform set out Chapter do you prefer:

(a) Recognition and enforcement?

(b) Prohibition?

(c) Non-interference?

(d) Regulated surrogacy?

3. Recognition and enforcement.

If this model is accepted, does your acceptance extend to enforcing the terms of the agreement which would secure transfer of custody? if not, what types of terms would you allow to be enforced:

(a) those relating to health care during pregnancy?

(b) those concerning termination of the pregnancy?

(c) terms requiring the commissioning couple to pay for health care of the mother and child?

(d) those requiring payment of a fee to the surrogate?

(e) terms requiring payment of maintenance by the commissioning couple on their refusal to accept the child, or on the surrogate’s refusal to transfer custody?

4. Prohibition

(a) Do you agree with the Commission that a total prohibition of surrogacy could not be enforced?

(b) If there were to be a total prohibition, should some aspects of the practice, or some parties to it, be exempted from any criminal sanctions applied?

(c) Is there a risk of “tainting” the child if a total prohibition is recommended?

(d) If you would recommend total abolition of surrogacy in this State, on what moral and/or social grounds would you base your recommendation?

(e) If the practice of surrogacy is to continue, should some aspects of it be prohibited?

(f) What aspects would you prohibit

• the employment of intermediaries, whether paid or not?
• advertising for participants?

(g) Should altruistic surrogacy be exempted from the prohibition?

(h) IVF surrogacy:

• Is there a distinction to be made between IVI7 surrogacy used to produce a genetic child for the commissioning couple and its use for convenience?
• Should IVF surrogacy be available for single people or single sex couples or should it be restricted to married couples or those living in stable de facto relationships?

5. Non-interference

(a) It is possible that, with some relatively minor statutory amendments to clarify questions of legal parentage, the whole issue of surrogate motherhood could be ignored by Parliament and left to develop through the common law. As described in Chapter 3, apart from the questions of paternity and maternity, the interests of the child can be accommodated under existing family law. The Commission would welcome comment on whether surrogacy should be left to be dealt with by the courts.

(b) Those aspects of the surrogacy agreement which are ancillary to the custody issue might also be left for settlement by the courts, although with less confidence that they can be dealt with adequately. The likely gaps in the law will De in the area of equitable remedies used to enforce personal obligations. As described in Chapter 3, it is unlikely that the parties will be able to enforce those terms of the agreement which require personal performance. The Commission would welcome comment on whether these obligations should be made enforceable by statute. If not, is the award of damages sufficient compensation for breach of the ancillary terms of the agreement?

(c) Do you agree with Singer and Wells that this model would leave the commissioning parents with worthless contracts which they are unable to enforce? Should the commissioning couple be given any better remedies by statute?

(d) Chapter 2 sets out the Family Law Council’s view that relatives should not be permitted to adopt their children. The Council’s recommendation is that an assignment of the legal rights and obligations of parenthood by a transfer of custody should satisfy the commissioning couple’s need for security. Trends in adoption practice in other parts of the world are cited in support. The Commission would welcome comment on this view.

(e) If the views on custody and adoption described in (d) above are accepted, is there any need to extend the statutory presumptions of maternity and paternity to a child born through the surrogacy process? The issues are discussed in Chapter 3.

(f) In whose name should the birth of the child be registered? Should provision be made to prevent the child having access to information on the register which might reveal the circumstances of the birth? Should access be permitted when the child attains 18?

6. Regulated surrogacy

(a) Should surrogacy arrangements be made under a detailed regulatory system such as was recommended by the Ontario Law Reform Commission, or under consideration by the United States National Conference of Commissioners on Uniform State Laws.

(b) Which elements of a surrogacy arrangement should be regulated?

(c) Should the arrangements be subject to the approval of

• a court; or
• a Government agency?

(d) Under what circumstances should the surrogate mother’s agreement to surrender the child be enforced?

1. P Singer and D Wells The Reproduction Revolution: New Ways of Making Babies (1984) at 123.

2. Id at 121.

3. M D A Freeman “After Warnock-Whither the Law?” (1986) 49 Current Legal Problems 33 at 44.

4. Warnock Report at para 8.19.

5. M D A Freeman, note 3 at 46.

6. P Singer and D Wells, note 1 at 125.

7. Ibid.

8. Discussed above at para 4.14.

9. P Singer and D Wells, note 1 at 126.

10. M D A Freeman, note 3 at 46.

11. Id at 49.

12. Chapter 3, paras 3.47 ff.

13. Chapter 2, paras 2.9-2.14.

14. Ontario Report (Vol II, 1985) at 219.

15. Waller Report at para 4.17.

16. Id at para 4.16.

17. Ibid.

18. Id at paras 4.14 and 4.16.

19. Warnock Report at para 8.20

20. Id at paras 8.18-8.20.

21. Id at para 8.17.

22. Ontario Report at 237.

23. Ibid.