INTRODUCTION
8.1 The adoption of children born as a result of reproduction technology will normally involve all the issues discussed in this paper relating to adoption in general. However, the terms of reference call for an assessment of the adequacy of the Act in dealing with the particular issues arising from reproduction technology. Before turning to these it is necessary to define the key terms.
Surrogacy
8.2 Surrogacy, or a surrogate motherhood arrangement, is one in which a fertile woman agrees to bear a child for a couple, conceives and carries the child through the pregnancy and agrees to transfer all her parental rights and responsibilities to the couple on the birth of the child.1 This transfer may involve adoption. Surrogacy arrangements continue to occur, due in part to the falling number of healthy white newborn babies available for adoption and the limited success rates and high cost of reproduction technology.2 The Commission has received information that private surrogacy arrangements are made in Australia and that couples then want to utilise the adoption legislation in order to formalise the relationship. Such cases may be dealt with by the Department of Community Services as “Special Case” adoptions.
Reproduction Technology
8.3 “Reproduction technology” is more difficult to define, since it refers to a number of different procedures and technologies. Reproduction technology, which is increasingly seen as an alternative to adoption for infertile couples, raises a range of difficult and as yet unresolved legal problems.
8.4 The various types of reproduction technology have two common characteristics. First, they are intended to assist fertility by making it possible for people to overcome difficulties in having children. Secondly, technology has made it possible to divide the processes of parenthood, so that genetic input, fertilisation, gestation and birth can be undertaken by separate individuals. These divisions make it difficult to characterise the participants as “father” and (especially) “mother”. Because we have no precedents for deciding the relative values of each of the above stages of reproduction, there is no clear way of assigning roles to each of these individuals in the life of the child. Indeed, there is no accepted language to describe the various roles involved.
8.5 Using various techniques of assisted conception, twenty-one assisted fertility units in Australia are achieving a significant number of live births.3 The various techniques available include the following:-
Artificial insemination, using the sperm of husband/partner (AIH) or that of a donor (AID) to inseminate the woman.
In Vitro fertilisation, using the woman’s own ovum or donor ova and the husband/partner’s sperm or donor sperm. The sperm and ovum are placed together in a petri dish so that fertilisation can take place.
Embryo flushing. This technique involves flushing the embryo from a donor’s uterus after fertilisation has occurred in vivo but before the fertilised ovum attaches itself to the wall of the donor’s uterus. Such an embryo is then transferred to the woman who will gestate and give birth to the child.
Embryo-freezing and frozen embryo transfer. The ability to freeze embryos that have been created using in vitro fertilisation means that more ova can be fertilised at one time and surplus embryos stored. This technique was developed so that if pregnancy is not achieved with the initial introduction of the embryos to the fallopian tubes or the uterus, further attempts can be made at a later date with the stored embryos, thus avoiding the need to repeat drug therapy and surgery to obtain more ova. However, a couple may achieve pregnancy and still have frozen embryos that they want to donate to others. This has been referred to as “embryo adoption”4
THREE SCENARIOS
8.6 The variety of reproduction technologies makes it difficult to identify the issues and assess recommendations. A proposal that seems a sensible response to one situation may seem inappropriate for several others. Further, the complexity of some of the methods makes it difficult to keep track of the facts, let alone formulate recommendations. Therefore, in order to assist consideration of the issues, we thought it would be helpful to describe three particular situations against which various principles and proposals can be tested. They are as follows:-
Scenario one
8.7 Margaret and Michael are involved in a de facto relationship. Margaret decides that she wants to start a family and, without Michael’s consent, makes private arrangements to artificially inseminate herself with donor sperm. Margaret’s relationship with Michael breaks down in the early stages of the pregnancy and Margaret decides that she wants to relinquish the baby for adoption.
Scenario two
8.8 Jane and John are both infertile. Jane’s married sister Karen, and her husband Paul, offer to have a baby for Jane and John. Karen and Paul arrange for Karen to be impregnated with a donor ova that has been fertilised in vitro by donor sperm. Upon the birth of the child, Karen and Paul hand the baby to Jane and John. Jane and John want to formalise the relationship with the child by adopting her.
Scenario three
8.9 Maureen and Peter have been married for five years. Maureen has had a partial hysterectomy so that her ovaries remain. Peter is fertile. The couple find a woman who is prepared to carry the child and this woman is artificially inseminated with an egg donated by Maureen and Peter’s sperm. Upon the birth of the child, the baby is handed to Maureen and Peter. Peter’s name appears on the birth certificate. Maureen and Peter wish to adopt the child.
THE RELEVANCE OF REPRODUCTION TECHNOLOGY AND SURROGACY TO THIS REVIEW
8.10 The Commission has dealt in earlier reports with such issues as whether surrogacy contracts should be upheld or enforced, whether reproduction technology should be available and, if so, to whom it should be available.5 At the time of writing, no legislative action has been taken with regard to the Commission’s recommendations. Australian legislators have taken different approaches to the issues.6
8.11 These issues are not within our present terms of reference and it would clearly be inappropriate for the adoption legislation to deal comprehensively with these matters. This Issues Paper addresses the adequacy of the present adoption legislation to respond to children who have either been born with the aid of reproduction technology or whose birth mother is planning to (or has) handed them to a commissioning couple at birth as part of a surrogacy arrangement.
CONSENT
Whose consent or participation is required for the adoption of a child whose birth involved the use of reproduction technology or surrogacy? Is it useful to characterise the people whose consent is required as “parents”, or should we use other terms?
8.12 Adoption law, as we have seen, normally requires the consent of the “parents”. The reproduction technologies and surrogacy arrangements currently practised, however, can make it very uncertain who, if anyone, should be characterised as a “parent”. It is now possible for a child to have five “parents”; a genetic father and a social father, and genetic, birth and social mothers. Consider, for example, who the “parents” are in the three scenarios described above.
8.13 Is it appropriate in this area to retain the usual approach of adoption law, namely to provide for consent to be given by certain persons, but to give the Court a power to dispense with consent? Would it be better to have a different approach, for example, one in which consent is required from people who have participated in the reproduction process in some way and who have registered their wish to be involved in decisions relating to the child?
8.14 In what ways should adoption law deal with children resulting from reproduction technology? Should it facilitate the adoption of the children in accordance with the wishes of those involved as “special case” adoptions? Or should it, at the other extreme, require that the children be surrendered to adoption agencies for placement with adopters chosen by the agency? What principles should govern this matter?
INTRA-FAMILY OR “NON-FAMILY” ADOPTIONS?
8.15 We have already seen that the present Act distinguishes between intra-family adoptions and other adoptions, and subjects non-family adoptions to a stricter regulatory scheme. Assuming that this framework is to be retained, it is not obvious whether adoptions arising out of reproduction technology, surrogacy arrangements or a combination of both should be regarded as “family” or “non-family” adoptions. For example, it is not clear how the proposed adoptions in the above scenarios should be regarded. It might be arguable that some adoptions should fall into different categories and that different requirements might attach to each of the categories.
LACK OF GENERAL LEGISLATION ON REPRODUCTION TECHNOLOGY
8.16 It may be that the distinction between intra-family and “non-family” adoptions is not helpful in this context, and that the law should treat the regulation of adoption arising out of reproduction technology (or some forms of reproduction technology) as a separate issue. If so, what approach should be taken? This matter is particularly difficult to decide in light of the fact that at this stage there has been no legislation arising from the Commission’s earlier reports, and thus no indication of the legislature’s general approach to the wider issues. What approach should now be taken? Should the Commission start from the recommendations made in the earlier reports and make recommendations on the adoption legislation that would be consistent with those earlier recommendations? Should the Commission make recommendations about what the adoption legislation should contain in the situation where Parliament has not determined the wider policy issues?
INFORMATION, IDENTITY AND OPENNESS
What approach should the law take to issues of information, identity and openness in the case of children born as a result of reproduction technology?
8.17 Issues of access to information, identity, and “openness” in adoption are raised elsewhere in this Issues Paper. What approach should be taken to these matters in the case of children resulting from reproduction technology? Should the children be entitled to full information about the circumstances of their conception and birth? Such an approach would appear to be consistent with the widely accepted view that adoptive children should always be told of their adoptive status. To what extent should provisions about rights to information, rights of access and similar matters apply to those who participated in various ways in the reproduction technology that resulted in the birth of the children?
8.18 Would it be better for the law to dictate a prescribed set of rules or to take a more flexible approach, for example, by giving the court power to make orders tailored to the particular circumstances of each case? If so, should the legislation include principles governing the exercise of such powers? What might such principles be?
FOOTNOTES
1. M Meggitt “Lessons to be Learnt in Parallels Between Adoption and Surrogacy” Policy Issues Forum April 1991 at 8
2. Meggitt at 7-8
3. Twenty-one assisted fertility units in Australia and four in New Zealand treated infertile couples in 1990. This treatment resulted in 1,110 live births after the use of IVF and 740 births after the use of GIFT procedures, increasing to 8,430 the total number of live births after assisted conception in Australia and New Zealand. Assisted Conception: Australia and New Zealand 1990 Report from the AIHW National Perinatal Statistics Unit, (Fertility Society of Australia, Sydney, 1992) at 2. GIFT refers to Gamete Intra-fallopian Transfer. This is a procedure to assist fertility whereby the ovum and sperm are threaded into a catheter with an air bubble between them. They are then placed in the fallopian tube where hopefully they fertilise and move down the fallopian tube to the uterus.
4. A Trounson et al, Br Med J 286 (1983), at 835. It has also been referred to as “adoptive pregnancy”. See, for example, C Bell “Adoptive Pregnancy: Legal and Social Work Issues” Child Welfare Vol LXV Number 5, September-October 1986.
5. The Commission has published three reports on different aspects of reproduction technology: Artificial Conception: Surrogate Motherhood (Report 60, 1988); Artificial Conception: Human Artificial Insemination (Report 49, 1986); Artificial Conception: In Vitro Fertilisation (Report 58, 1988).
6. See Infertility (Medical Procedures) Act 1984 (Vic.); The Surrogate Parenthood Act 1988 (Qld.); Family Relationships Act 1975 (SA.). See also Human Fertilisation and Embryology Act 1990 (UK).
