RECOMMENDATION 1: Welfare of Child
The welfare of the child should be the paramount consideration and should prevail over the interests of the adults involved in a surrogate motherhood arrangement.
4.1 As stated in the discussion paper,1 the major concern the Commission has in this part of the reference on artificial conception is to ensure that the welfare of any children born through the use of surrogate motherhood is protected. Our first recommendation is that, as in all matters concerning the guardianship and custody of children, the welfare of the child should be the paramount consideration. Along with many others in the community, the Commission believes that surrogate motherhood is not a desirable means of providing children for the infertile, and we are keen to ensure that it does not become an accepted alternative for those who have failed to have a child by artificial insemination or IVF, even if regarded as a last resort.
4.2 Throughout work on the artificial conception reference, the Commission has been guided by four principles. They are:
- It is desirable, where possible, to alleviate the consequences of infertility through practices such as Al and IVF.
- The paramount consideration in the practice of Al and IVF still be the welfare of the child.
- The formation of stable families is socially desirable and necessary.
- Personal freedom and individual autonomy should, so far as possible, be respected.
4.3 In this part of the reference, the Commission has taken the view that the interests of the child should prevail over those of the infertiIe couple. On some occasions, in the recommendations which follow, we have felt justified in curtailing the freedom of the adults involved in order to contain the growth of the practice. On other occasions, we have relied on the welfare principle to justify a more lenient treatment of the immediate parties to a surrogacy agreement than we would otherwise have recommended.
4.4 Application of the welfare principle does not mean that the interests of others are always ignored or overridden. Rather, it means that their interests can be recognised only when they coincide with the interests of the child. Therefore, no agreement between adults can determine matters of guardianship, custody or access and no rights thought to belong to the birth mother or genetic father can be decisive.
RECOMMENDATION 2: Surrogate Motherhood should be Discouraged
The Commission recommends that the practice of surrogate motherhood should be discouraged by all practicable legal and social means.
4.5 The Commission believes that the practice of surrogacy is undesirable:
- it involves the deliberate creation of new life for the purpose of alleviating infertility;
- the body of a woman is put to the service of the commissioning parties;
- the practice entails the planned separation of child and birth mother, at a very early age and permanently;
- it tends to ignore the interests of other members of the families of the participants;
- both the woman who is to act as the surrogate and the woman who commissions the child are placed at significant risk by the process because of the possibility of moral pressure being exerted on them to comply. Even in altruistic surrogacy arrangements there can be no guarantee that both women have exercised true freedom of choice;
- the legal recognition and enforcement of a surrogacy agreement is inconsistent with the philosophy that in all cases concerning guardianship or custody, the welfare of the child should be the paramount consideration.
4.6 In its consideration of the matter, the strongest claim the Commission has found in support of the practice is that it provides children for the infertile. While the Commission has sympathy with this view, we regard the disadvantages of the practice to be so great as to outweigh even the needs of the infertile. We cannot accept that it is in the child’s interests to be conceived and born for this purpose. The process denigrates the position of women in society and the process of childbirth. It lends credence to the view that children may be used as means to an end and employs the services of professional medical practitioners and health care workers to assist. A clear majority of the submissions receive by the Commission were opposed to surrogacy and the promotion of it as a legitimate alternative for couples wishing to have a child. These submissions are analysed in detail in Chapter 3 and show a remarkable unanimity.
4.7 The practice of surrogate motherhood holds dangers, both for the individuals involved and for the future development of childbearing and childcare arrangements in our society. In our recommendations we have tried to prevent the worst abuses without intruding too far on individual autonomy. Our recommendations are a compromise between complete prohibition of the practice of surrogacy and no regulation at all. We believe they meet current community demands.
RECOMMENDATION 3: Prohibition of Commercial Surrogacy
The Commission recommends that all forms of commercial surrogacy should be prohibited. It should be an offence to pay, receive, offer or solicit any reward for participation in or facilitation of a surrogacy arrangement or any part of a surrogacy arrangement.
4.8 This recommendation is intended to prevent the development of commercial surrogacy in this State. Similar prohibitions on the activities of commercial intermediaries are in force in Victoria,2 Queensland3 and South Australia.4 The prohibition is intended to extend to all those who offer or receive payment or some financial advantage from surrogacy, whether as a broker, a commissioning parent, or as a woman wishing to act as a surrogate mother. Therefore, whether acting as a commercial broker or not , anyone who invites or accepts payment for assisting the parties to the arrangement should be included in the prohibition. This would include members of the medical and legal professions, psychologists, counsellors and those involved in family planning, who accept payment for assisting in a surrogacy arrangement. Further recommendations on the liability of these professional people are made in Recommendation 5 below.
4.9 Under this recommendation it would be an offence to make a direct payment for services related to surrogacy or for the transfer of custody. To ensure the effectiveness of the prohibition we also recommend that the offence should extend to attempts to avoid liability by making indirect payments (for example, payment of the surrogate mother’s expenses) or conferring other benefits not otherwise due at law (accommodation, clothing or travel). The recommendation is not intended to affect payments made by court order or agreement under either the Family Law Act 1975 (Cth) or the Maintenance Act 1964.
4.10 In coming to its conclusions the Commission has been influenced by evidence of certain practices reported from the United States of America. In that country there has been a rapid development of very sophisticated brokerage services. Of particular concern to the Commission is the evidence that these brokers not only advertise for services but also seek to control the lives of their clients in unacceptable ways. These agencies also seek to influence public opinion by promoting apparently successful surrogacy arrangements whilst suppressing those that fail. The Commission has also been told of instances of brokers targeting young women in vulnerable economic circumstances (students and social services recipients) and persuading them to become surrogate mothers for their wealthy clients. Certain members of the medical and legal professions are deeply involved in the enterprise in the United States, along with psychologists and those operating the brokerage firms. Many of these professionals are reported to have developed mechanisms for making payments or conferring benefits on tile surrogate mother which avoid statutory prohibitions on commercial surrogacy. Care must therefore be taken to prevent the development of such schemes in New South Wales.
4.11 The Commission has received no evidence to suggest any widespread use of paid intermediaries or surrogate mothers in New South Wales. However, since there is obvious potential for profit in the practice, there is reason to believe that a brokerage industry would develop if not prevented by legislation. Apart from the negative experiences reported from the United States, the Commission has identified five aspects of the practice of commercial surrogacy which make it unacceptable:
- It permits profit to be made from the creation and transfer of custody of a child;
- It entails the use of a woman’s body, and of human gametes, for commercial purposes;
- It creates a “Profit motive” that encourages persons, mainly potential surrogates, to enter into surrogacy arrangements; Tile receipt of money may inhibit those immediately involved in the arrangement in reconsidering their decisions. Whether or not it is well-founded, a payment of money to the surrogate mother may lead her to believe that she cannot withdraw from the arrangement. This belief may be reinforced by the commissioning couple threatening proceedings for recovery of money paid if she does not complete the agreement. The Commission has also been told of American experiences in which threats are made to report tile surrogate mother for non-disclosure of the receipt of money to taxation or social security authorities. These matters may overbear the surrogate mother in her decision whether to part with tile child.
- It is tantamount to a trade in women and children which has never been countenanced in Australian society. The traditions reflected in our adoption and child welfare laws have always been opposed to the commercial exploitation of childrearing and we have always been careful to repose responsibility for the care of children in public or charitable institutions and not in private, commercial organisations.5
4.12 We therefore recommend that legislation should be enacted to prohibit commercial surrogacy in the terms appearing in this recommendation. Special attention should be given to the definition of the terms payment and reward to ensure that the prohibition is not avoided by use of devices which purport to cover expenses or confer other benefits.
RECOMMENDATION 4: Advertising in relation to Surrogacy
Anyone who publishes or causes to be published a statement or advertisement offering or soliciting participation in a surrogacy arrangement should be guilty of a criminal offence. It should also be an offence to publish, advertise or cause to be advertised a statement that a person is willing to negotiate, arrange or obtain the benefit of a surrogacy arrangement on behalf of another.
4.13 These offences should have a very wide operation. They should attach to paid promoters of surrogacy arrangements, surrogate mothers who advertise their services and to the commissioning couple. Newspapers which accept such advertisements should also be guilty of offences.
4.14 Whether made to the surrogate mother by an entrepreneur or the commissioning couple public offers of this nature are unacceptable because they encourage the development of a trade in surrogates and their children. Therefore, the parties should not be permitted to advertise on their own behalf, even if no financial reward is offered. For the reasons set out in Recommendation 5, we find it unacceptable to impose sanctions on those who participate in the practice privately and therefore have not recommended that surrogacy be outlawed altogether. Such advertising of requests and offers of services no longer constitutes a private activity. It is public, and tends to the same mischief as other commercial forms of the practice. It should therefore be prohibited.
RECOMMENDATION 5: Prohibited Activities
The Commission recommends that the following practices associated with surrogate motherhood should be prohibited, and that criminal penalties should be imposed on anyone convicted of engaging in them, except the immediate parties to the arrangement.
4.15 The Commission has had difficulty settling the two parts of this recommendation which follow (at paragraphs 4.18 and 4.27) because it is anxious not to extend the criminal law beyond reasonable limits. We believe the criminal law is properly used to prevent the growth of a commercial industry in surrogacy. We are less sure about its use to deter those who seek no profit. We have sought a compromise so as not to be too harsh on the immediate parties to the arrangement and the child. Therefore, in the recommendations that follow, we propose that criminal penalties should be imposed on anyone who assists the immediate parties with their arrangements for a surrogacy agreement but that the parties themselves should remain free from criminal sanctions. one member of the Commission has dissented from the recommendations to impose criminal sanctions in these circumstances. The terms of the dissent are set out in paragraphs 4.22 - 4.26 below.
4.16 There are several reasons for distinguishing between the immediate parties and others outside who assist in the arrangements. We believe there is general public sympathy and tolerance for the predicament of the immediate parties. The commissioning couple suffer the distress and disappointment of infertility and the surrogate mother (and her partner who should be included amongst those immediately involved) respond to that. Although the Commission believes that they will be acting unwisely if they enter into a surrogacy arrangement, we are not prepared to allow the criminal law to intrude into their affairs in order to secure the total prohibition on surrogacy we would like. Other disincentives are offered later in the report: see Recommendations 8, 9 and 10 below.
4.17 The Commission also believes that the enforcement of the criminal law against the immediate parties may self-defeating. The spectacle of the arrest, trial, and imprisonment of a surrogate mother, her partner and the commissioning couple would be unedifying. While those immediately involved are likely to be deterred by the imposition of criminal sanctions, no such reliable prediction can be made for the immediate parties. Other considerations may make them act unreasonably or even recklessly. Should proceedings be necessary against the immediate parties , they will occur at a time when the interests of the child should be the central concern of the parties and the community. The need for the parents to defend criminal proceedings in relation to the birth can hardly be in the best interests of the child. Prosecution of the parties may also interfere with decisions the parties and courts have to make on the guardianship and custody of the child. With these considerations in mind, we make the following recommendations:
(A) Unpaid Intermediaries
Any person, except one of the immediate parties to the arrangement, who knowingly arranges or undertakes to arrange an introduction between those who may be interested in participating in a surrogacy arrangement, or who in any other way knowingly assists in carrying out such an arrangement, or any part of such an arrangement, should be guilty of an offence.
4.18 Criminal penalties should be imposed on anyone acting as an intermediary between the parties in the making of a surrogacy arrangement. The Commission also seeks to prevent third parties acting to arrange introductions between the parties. These prohibitions should extend to anyone Outside the immediate parties to the arrangement, including medical practitioners and counsellors. Members of the immediate parties’ families and their friends should also be prevented from providing active assistance. However, they should not be penalised for offering advice and no professional should be prevented from counselling a patient or client.
4.19 During consultation, the Commission became aware of many individuals and organisations prepared to assist in surrogacy without receiving payment. Those falling into this category included members of the medical profession, psychologists and those staffing family planning clinics as well as relatives and friends of the immediate parties to the arrangement. It is the Commission’s view that all these people should be subject to criminal penalties if they give active assistance to the parties in giving effect to their arrangements. Such assistance would include the act of a hospital employee who knowingly entered false records of maternity, or otherwise actively participated in handing over a child to a woman who was not the birth mother, knowing the act was in part giving effect to a surrogacy arrangement.
4.20 The Commission is, however, anxious to ensure that its recommendations do not result in the withdrawal of counselling and medical services from the surrogate mother and child. Professional groups offering infertility counselling and advice should be able to continue their work unimpeded by the threat of criminal sanctions. Our recommendation is also designed to ensure that, once the pregnancy is established, all medical and health support services are available to the mother and child and that those providing them should not risk prosecution for this offence. We hope that those involved would not abuse any position of counselling in order to facilitate a surrogacy arrangement. The cIear statement of legislative policy intended by our recommendations, coupled with the risks of professional disciplinary action or, in extreme cases, imposition of criminal IiabiIity should be sufficient deterrent for those who would abuse their position.
4.21 The purpose and policy behind the Iaw controlling these activities should be explained to the medical practitioners and other professionals likely to be approached for assistance (as well as to the patients) in the publicity campaign described in Recommendation 7. This instruction, and the risk of criminal prosecution, should ensure that medical practitioners and health care workers take no major role in surrogacy, but the matter should be kept under review.
Minority View
4.22 The Chairman of the Commission dissented from this recommendation. While agreeing in principle that the activities of third parties should be discouraged, Ms Gamble is not prepared to join in the recommendation to impose criminal penalities on unpaid activities. She believes that the prohibitions on commercial surrogacy contained in Recommendation 3 and on advertising in Recommendation 4 represent the limit to which the imposition of criminal penalties should extend. The provision of counselling, advice and medical assistance by professional people, relatives and friends should remain beyond the reach of the criminal law. The reasons for this dissent are set out t below in paragraph 4.23 - 4.26. It does not extend to the matters relating to IVF surrogacy contained in Recommendation 6 below.
4.23 Private relationships amongst family and friends should not be the subject of criminal investigation. In private, people should be free to make mistakes and errors of judgment without penalty. The appropriate answer to the social ill caused by such private activities is widespread and well planned education programs which inform of the emotional, physical and legal hazards of surrogacy. Even if surrogacy is found to be acceptable to a few through use of personal contacts, this is something the community should be prepared to accept, for it is better that a few engage in a practice the majority regards as unacceptable than that all be subjected to the public scrutiny of criminal investigation.
4.24 Members of the medical and health care professions will be subjected to a lot of pressure from some of their patients to assist in both the planning and the performance of surrogacy arrangements. So long as they do not advertise or hold themselves out as brokers or procurers of surrogacy, they should not be subject to criminal penalties. Where professional people act conscientiously and according to their understanding of good practice, the criminal law should not intervene. Instead, effort should be put into instructing them in the dangers of surrogacy.
4.25 Perhaps the most important reason for opposing the recommendation is that it involves an appropriate extension of the criminal law. The major reason for resorting to criminal sanctions is to deter would be offenders. The labelling of an activity as criminal is one of the simplest ways the community has of expressing its disapproval. If this were all the Commission’s recommendation amounted to, there, could be little objection to it, but the consequence of labelling something as criminal is public enforcement. If such ordinary enforcement is not intended, then the Commission should not recommend creation of the new offence.
4.26 One of the concerns frequently expressed to the Commission has been that if medical practitioners are permitted to assist in these arrangements, surrogacy may come to be regarded as a natural progression for the infertile from failed artificial insemination and IVF. To date, the evidence is to the contrary. Indeed, the Commission has received evidence which suggests that some members of the medical professional would welcome the creation of these offences in order to avoid the dilemma they face when a request is made for assistance or advice on surrogacy. Doctors do not need the backing of the criminal law to refuse treatments they do not wish to perform and their personal quandary of whether to offer treatments of which they do not approve does not provide a good reason for imposing such penalties.
4.27 Another professional person who may be called on to give advice is the family lawyer. Lawyers who only give advice on the validity of a proposed agreement or on the status of the child should not be regarded as committing an offence. However, if the advice or assistance goes further, and amounts to facilitating or encouraging the parties in their intention to enter the agreement, this should constitute an offence.
4.28 During the consultation period, several lawyers contacted the Commission, asking for information on behalf of clients wishing to arrange surrogacy arrangements. We believe that the use of lawyers to facilitate or draw up surrogacy agreements may become widespread. They should be prohibited from acting as intermediaries, or assisting in the organisation of such an arrangement in any way that encourages the growth of surrogacy.
4.29 We believe that unless prohibited, these activities could legitimise and promote surrogacy arrangements. In addition, the drawing up and signing of such an agreement may give the parties to i t a sense of security or obligation that is not supported by the law. The Commission considers that the false impressions produced would be compounded if the agreement is drawn up by a legally qualified adviser or practising lawyer.
RECOMMENDATION 6: IVF Surrogacy
No special provision need be made for IVF surrogacy. It should be an offence for a medical practitioner to knowingly assist a surrogacy arrangement by providing IVF services to the parties. This would constitute an offence under Recommendation 5(A) above which recommends a prohibition on knowingly assisting or making an offer of assistance.
4.30 When a couple is able to supply the gametes required for conception, IVF surrogacy offers the closest substitute for natural conception since it produces the genetic child of the commissioning couple. The process is open to serious objection, however, because the body of the surrogate mother is simply used as an incubator by the commissioning couple. The woman is subjected to an invasive procedure for which she has no need and the natural child carrying process is thought to be distorted by the fact that the surrogate mother is counselled against bonding to a child she is to lose at birth. For these reasons, and many more discussed in Chapter 3, the procedure is rejected by many as a reasonable alternative for the infertile couple.
4.31 In the three States in which it has been addressed IVF surrogacy has not been approved. This is in spite of the fact that it is a procedure which is most keenly sought after by many who are infertile. So far as we are aware no hospital or clinic in New South Wales ha-, permitted the use of IVF surrogacy to date but there is evidence that medical practitioners will face increasing pressure to perform the operation. The view most often expressed by these practitioners is that, given both legislative approval and the approval of their ethics committees, they would be prepared to offer IVF surrogacy where the medical condition of the commissioning couple indicated that this was the only way they could have a child.
4.32 Treated in isolation as a remedy for the commissioning couple, IVF surrogacy does not appear objectionable. However, the Commission is unable to view the procedure in this way, because we are conscious of the interests of the other people involved. Above all, we find it impossible to reconcile the medical practitioner’s duty to the commissioning couple with the duty to the surrogate mother who also becomes a patient. We cannot accept that it is in the interests of the surrogate mother to subject herself to the IVF process and carry the child for the commissioning couple. The Commission therefore recommends that no special exception be made to the prohibition in Recommendation 5A to permit IVF surrogacy to be performed.
RECOMMENDATION 7: Public Education
Along with the prohibitions outlined above, the Commission recommends that further steps should be taken to dissuade infertile couples from resorting to surrogacy arrangements.
4.33 We would envisage steps along the following lines:
A program should be developed to offer the public as much information on surrogate motherhood as possible in order to heighten awareness of the dangerous implications of general acceptance of the practice. The public should also be informed of the provisions in force to reduce the incidence of surrogacy. We propose the release of a number of brochures through the Department of Health. We would also envisage the Biomedical CounciI recommended in the report In-Vitro Fertilization having a substantial roIe in this educative process.
Counsellors involved in infertility counselling and family planning should be made aware of the dangers involved in surrogacy. This should ensure that counselling against surrogacy is widely available, especially in the early stages when those likely to be involved are assessing their alternatives and may be more open to persuasion against the practice.
The major disincentive to those proposing surrogacy will be the unenforceability of any term in the contract which requires transfer of the child. This proposal is dealt with in Recommendation 8 below, but clearly the greatest discouragement to those seeking a child in this manner will be the refusal to ensure that custody will actually pass to them. Another disincentive would be the fear of criminal penalties attached to certain activities.
The attitude of the public to surrogacy is obviously very important in the model the Commission is proposing. The main contribution of this report, and the recommendations contained in it, may be to assist in creating a social climate in which the surrogacy option becomes unpalatable to potential surrogates and parents. The Commission recognises, however, that ultimately the law cannot enforce community morality on this question. It can only place obstacles and create a negative climate to discourage the process.
RECOMMENDATION 8: Surrogacy Agreements to be Void and Unenforceable
The Commission recommends that surrogacy agreements should be void and unenforceable at law.
4.34 Although the Commission does not wish to see criminal penalties imposed on the immediate parties where they privately give effect to a surrogacy arrangement, we do not believe that any agreements they reach should be enforced through the courts. Legislation should be enacted to ensure that any agreement for surrogate motherhood is both void and unenforceable. If such a provision is enacted no part of any surrogacy agreement would be recognised by the law.
4.35 Any term in an agreement which seeks to bind the surrogate mother to hand the child over to the commissioning parents is already void and unenforceable at common law because it is contrary to public policy. The judicial attitude to other parts of the contract is not so clear. The decided case law in England and the United States of America leaves some doubt whether those provisions of a contract for surrogate motherhood which do not cover transfer of custody of the child will be enforced by the courts. There are two grounds on which these aspects of the contract may be regarded as unenforceable. First , the whole contract may he regarded as contrary to public policy and therefore unenforceable. The, court may take the view that the whole contract is affected even though its most sensitive aspect, the transfer of custody, is removed from contention. Secondly, even if t h e view is taken that these ancillary provisions of the contract are enforceable, a court may decline to enforce them because to do so in a particular case would be regarded as unconscionable. There is no reason to believe that the courts of New South Wales would take a different view from the courts in England and the United States.6 When the question comes before the courts of this State therefore it may be that even the ancillary parts of the surrogacy contract will be held to be unenforceable.
4.36 The Commission’s view is that it should be made plain that all parts of the agreement are void and unenforceable. In this we are supported by the legislation and the recommendations of all the major inquiries which have touched on the matter. Section 30(3) of the Infertility (Medical Procedures) Act 1984 (Vic) makes surrogacy agreements void and s10g of the Family Relationships Act 1975 (SA) , as amended in 1988, makes them illegal and void. In Queensland, the Surrogate Parenthood Act 1988 which came into operation in September 1988, makes all surrogacy agreements void and unenforceable.
4.37 In England, the Warnock Committee recommendation that all surrogacy agreements should be illegal and unenforceable was not implemented in the Surrogacy Arrangements Act 1985. Section 1(9) of that Act appears to leave the status of these agreements to be determined by the courts since it applies to arrangements whether or not they are Iawful and whether or not they are enforceable by or against the person making them”.7
Since the enactment of that Act the British Department of Health and SociaI Security has released a White Paper which suggests that surrogacy arrangements should be made legally unenforceable.8
4.38 A number of submissions received by the Commission recommended that the agreements be made both void and unenforceable at law, the aim being to render them a complete nullity at law.9 The strongest submission on this point came from the Social Issues Committee of the Anglican Church Diocese of Sydney. In their submission the Committee put forward a “model of deliberate non-recognition of surrogacy”. A crucial part of this model was that the surrogacy arrangement should be regarded as a legal nullity so that “surrogacy arrangements will be at the risk of the parties to them - they may still occur and would not be illegal per se, but the parties to one would derive no enforceable rights or obligations from them”. The object of this policy of deliberate non-recognition is to generate uncertainty so as to discourage people from entering into the arrangements. This uncertainty would be reinforced by the enactment of a statement in the form of Recommendation 1 which should bring home to all concerned that custody will not automatically pass to the commissioning couple in the event of a dispute.
4.39 The NSW Infertility Social Workers group supported this policy from another perspective. They thought that the most important aspect of the agreement, the transfer of the child should only occur if the surrogate mother were “truly comfortable with her decision to surrender the child”. If she were comfortable, the transfer would occur whether or not there was an enforceable agreement.
4.40 The Commission agrees with these submissions and has been particularly impressed with the model for deliberate non-recognition proposed by the Social Issues Committee. This model is consistent with our desire to discourage but not penalise the immediate parties to the agreement unless they advertise or pay or receive money for their involvement. We believe they should be counselled against entering into a surrogacy agreement and denied any assistance from the law in making or enforcing their arrangements. Legislation declaring these agreements void and unenforceable should achieve these purposes. If made void and unenforceable no action could be taken on the surrogacy agreement by either party and any money paid under its terms would not be recoverable.
4.41 We believe that the parts of the agreement which provide for transfer of the child would be unenforceable independently of any nullity effected by statute as we are confident that this aspect of the agreement is contrary to public policy and therefore currently unenforceable. Decisions on guardianship and custody will be made in the Family Court in accordance with the welfare principle. Under s63F(1) of the Family Law Act 1975 (Cth) “each of the parents” is a guardian and both have joint custody of the child. Since Part VII of the Family Law Act (Cth) commenced in April 1988, s63F applies to all children, whether born within marriage or not.10
4.42 The provisions of the Family Law Act, the Artificial Conception Act 1984 and the Children (Equality of Status) Act 1976, which settle questions of maternity and paternity bv legal presumption, do not exclude the jurisdiction of the Family Court in guardianship and custody. The four parties involved, the surrogate mother and her partner and tile commissioning couple, may all participate in these proceedings and there is no reason why evidence of the circumstances of conception cannot be given in court.
4.43 Our recommendations do not leave the mother and child without support. The support provisions of both the Family Law Act 1975 (Cth) and the Maintenance Act 1964 apply to them. Section 66B of the Family Law Act places the onus of supporting a child on both parents, and gives priority to this responsibility over the support of themselves and other dependents. So long as the father is identified, and his paternity is not excluded by statutory presumption, he will share responsibility for support of the child with tile surrogate mother.
4.44 The father will also be liable to contribute to any medical expenses the surrogate mother may incur during the pregnancy. This obligation is imposed under s17 of the Maintenance Act. That Act also makes provision for the father to contribute to the funeral expenses if either the child or mother dies during childbirth.11
RECOMMENDATION 9: Presumptions of Parenthood
A conclusive presumption that the surrogate mother is the mother of the child should be enacted. No other changes should be made to the presumptions of parenthood currently applied under the common law and by statute.12
4.45 In making this recommendation the Commission is conscious that anomalies exist in the application of the statutory presumptions of paternity which may leave a child without a legal father and with impaired rights to maintenance and inheritance. As these presumptions do not prevent a court from giving recognition to the father of the child in a guardianship or custody order, the Commission recommends no change in them.
4.46 Some of the most passionate submissions received by the Commission concerned the rights of the surrogate mother to be recognised as the legal mother of the child she carries. The conclusion we reached, in the discussion paper,13 was that Under existing law the surrogate mother would be recognised as the legal mother of the child. In our view this is the effect of the presumptions of maternity contained in the Family Law Act 1975 (Cth), the Children (Equality of Status) Act 1976, the Artificial Conception Act 1984 and those applying at common law. The presumptions have the same effect whether the surrogate mother is single, married or living in a de facto relationship at the time of the birth.
4.47 The Commission recommends that there be a clear statutory statement of the surrogate mother’s maternity in the form of a conclusive presumption that she is the legal mother, whether or not she is biologically related to the child. Two reasons underlie our recommendation. Firstly, we believe that it is only in this way that the surrogate mother can be protected from the worst excesses feared in the procedure. Some have suggested that the use of donated ova be prohibited in IVF to avoid any difference occurring between genetic and legal maternity.14 We have attempted to achieve the same result by recommending restriction of the use of IVF to infertile women in Recommendation 6.
4.48 The second reason we recommend a conclusive presumption of maternity in favour of the surrogate mother is that by doing so we may be able to discourage some who would otherwise be willing to enter into a surrogacy arrangement. The legal recognition of the surrogate mother as the mother of the child will do as much to confirm her status in any dispute over custody or guardianship as it will to cast uncertainty on the role of the commissioning mother. Although the assignment of legal parenthood is less significant than it has been in the past, it still has symbolic significance. A necessary corollary of the assignment of parenthood is of course the attachment of IegaI duties to it as weII. As the presumptions of paternity often leave the father in an ambiguous position in relation to a child conceived by artificial means, it will be the mother who wiII be most readily identified as the person bearing the financial and other day to day responsibilities for the child’s upbringing. The Commission acknowledges that there are circumstances when the mother may find it difficult to enforce the financial responsibilities against the father of the child. Under our proposals she would be forced to bear the primary burden of supporting the child, for she would not be permitted to enforce any contractual agreement against the father and the commissioning mother would be deemed not to have any relationship with the child, even if she provided the ovum used in the conception. It would also be to the surrogate mother’s estate to which the child will turn for support after the deaths of both parents, unless the father has made provision for the child in his will or circumstances permit an application under the Family Provision Act 1982.
4.49 This recommendation would not deny the genetic parents all rights. As explained above (paragraphs 4.41 - 4.42), we believe that the commissioning couple would have standing in a custody or guardianship case, whatever the operation of the presumptions of paternity and maternity.
RECOMMENDATION 10: Adoption
An adoption order should only be available to the commissioning parents if orders for guardianship and custody under the Family Law Act 1975 (Cth) would not make adequate provision for the welfare of the child.
4.50 The wording of this recommendation is taken from ss11 and 12 of the Adoption Act 1984 (Vic). A shift of opinion has been occurring in adoption law in recent years. Previously, the major objective of adoption was to provide a guarantee of legal parental rights to the adopting parents. The child was given certainty of legal parentage as well and adoption was the statutory assignment of parentage to secure the interests of children who could not live with their natural parents. Most commonly it was used to place newly-born children with people who were not related to them. The order established a legal relationship between the adopting parents and severed relations with the natural parents. Because the emphasis was on the ascription of legal rights, adoption was also made available to those who were related to the child. Section 19(4) of the Adoption of Children Act 1965 allows the court to make an adoption order in favour of a couple notwithstanding that one or both of them are the natural parents of the child. Section 21(1A)(c) allows the court to dispense with a report from the Department of Family and Community Services or a private adoption agency when the adoption is sought by a relative.
4.51 In recent years adoption has been used just as much to create new family groups after the divorce of the natural parents as it has to secure homes for those without parents. Used in this way the practice has disadvantages.15 The drawbacks identified in use of adoption for step-parents are that the order may be used to deny a natural parent access to a child or to deny information about that parent to the child. As an adoption order normally entails the issue of a new birth certificate to alter the facts recorded at birth, and the maintenance of confidentiality by all who could report the truth officially, there are real dangers of abuse.
4.52 The response in some jurisdictions has been to withhold adoption orders from step-parents and relatives. Sections 11(2) and 12 of the Adoption Act 1984 (Vic) prevent a court making an adoption order in favour of a relative of the child unless there are exceptional circumstances and a finding has been made that a guardianship or custody order under the Family Law Act 1975 would not make adequate provision for the welfare and interests of the child. Similar legislation is ill operation in England.16 In these jurisdictions it was thought undesirable when step-parents are involved that a legal presumption of parentage should take the place of the common law assignment of custody and guardianship.17 But even in these jurisdictions, adoption has not been displaced as the preferred option for the care of very young children who are to grow up apart from their natural parents.
4.53 The Commission believes that these developments should be reflected in the law which is to regulate relationships between participants in a surrogacy arrangement. We do not believe that the surrogate mother and her family should be conclusively excluded from any relationship with the child by statutory presumption or all adoption order.
4.54 Two issues of policy need to be addressed in deciding whether adoption should be available to secure the relationship between the child and the commissioning parents. The first is whether adoption should be regarded as having the same status as it did in the past . Developments in both custody law and the law of adoption raise some doubt whether it is still appropriate to make a conclusive and permanent assignment of legal guardianship to adopting parents. On one view, the welfare principle itself is inconsistent with adoption since it concentrates not on the legal rights and duties of the parents but on achieving the best solution for the child in the circumstances of the case. This often requires a flexibility which is not available in adoption and may be better provided by the custody/guardianship jurisdiction of the Family Court. Recent progress towards more open adoption practices lends support to this new view of the parent/child relationship in which the right to custody is regarded as something that has to be earned. Even if adoption is found to be worthy of continued support in principle, the second question to be raised in surrogacy is whether the order should be available to the commissioning couple. Adoption is still the most positive way in which the child/parent relationship can be recognised between those who are not related. If surrogacy is to be discouraged, serious thought must be given to restricting its availability in surrogacy arrangements. Before withholding use of the order for this purpose, however, a very clear decision must be made about the effect Chat withholding the order will have on the welfare of the child. It may be that the price of withholding security from the commissioning parent’s is too high. We recommend that before making an adoption order, a court should have to be satisfied that guardianship and custody orders would not adequately serve the interests of the child. This would ensure that the courts weigh up all the matters we have raised before making the order for adoption.
RECOMMENDATION 11: Registration of Birth
An accurate record of the circumstances of the child’s conception and birth should be kept on the register of births. This should be available to the child on attaining the age of 18.
4.55 The Commission recommends that information recorded on the register of births should accurately represent the legal Circumstances of the child’s birth. This means that those people recognised as the legal parents of the child would be recorded as the parents, although they may be different from the child’s guardians. It is the guardians who should have the right to give the child a name.
4.56 This recommendation could result in the child bearing a name which is different from the legal parents. If our proposals under Recommendation 9 are accepted, it will be the surrogate mother who will have the right to register the birth and assign the child a name. It may be that at this stage the presumptions in the Artificial Conception Act 1984 will prevent the commissioning couple (in particular the father whose gametes are most likely to have been used) from gaining recognition as parents. Later, possibly after successful litigation in the Family Court, or perhaps by consensus between the parties, the commissioning parents may receive guardianship rights. In this case they will have the right to rename the child and alter the register.
4.57 Such changes in the right to exercise guardianship over the child are no different in surrogacy from the changes which may occur after parents have separated or divorced. Any conflicts which develop can be resolved satisfactorily in the Family Court by application of the welfare principle.
RECOMMENDATION 12: Department of Family and Community Services
The Department of Family and Community Services should have no specially assigned role in relation to children born through surrogacy.
4.58 No legislation should be enacted to require notification of the Department or its approval before custody can be transferred. The Department should maintain its normal functions of providing assistance to a court hearing a custody dispute and of intervening when a child is not believed to be receiving adequate care.
4.59 The Commission does not regard the intervention of the Department of Family and Community Services as necessary in all. surrogacy cases. There is therefore no need to assign the Department special functions in the area. Post-natal checks made by staff attached to baby health clinics will alert the Department to early signs of inadequate care or abuse. The Department should also be notified, and a foster care licence sought, if a child is placed for more than 28 days with people who are not relatives.18 This will only be necessary if neither of the commissioning parents is related to the child. Where guardianship or custody are contested in legal proceedings, it is likely that the court will call for background reports on aII parties and the chiId from officers of the Department. If not satisfied with the parties’ arrangements for the child, the Department wiII be able to express an opinion in court.
4.60 As there is every chance that cases requiring assistance from the Department will come to its attention under existing procedures, there is no need to assign it special powers.
FOOTNOTES
1. Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) 1.12-1.14, 7.11-7.17.
2. Infertility (Medical Procedures) Act 1984 (Vic) s30(2).
3. Surrogate Parenthood Act 1988.
4. Family Relationships Act Amendment Act 1988, ss10F, 10h.
5. Even when adoptions could be arranged by private individuals, before the Adoption of Children Act 1965, the arrangement had to be approved by a court.
6. Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846; In the Matter of Baby M 537 A.2d 1227 (1988).
7. Surrogacy Arrangement Act 1985 (UK), s3(1).
8. Department of Health and Social Security (UK) Legislation on Human Infertility Services and Embryo Research (Cm 46, HMSO, London, 1986).
9. Social Issues Committee, Anglican Church Diocese of Sydney (SB 18, 1988); Catholic Archdiocese of Sydney (SB 20, 1988); Mr John Wade (PH 1, 1988) Ms Marion Brown (PH 8, 1988).
10. The Commonwealth Powers (family Law - Children) Act 1986 (NSW) commenced operation in October 1987 but the transfer of powers was not taken up under the Family Law Act until the Family Law Amendment Act 1987 commenced in April 1988.
11. Maintenance Act 196,1 sections 19 and 20.
12. This Recommendation confirms Recommendation 37 of the report In Vitro Fertilization (LRC S8, 1988) at 100.
13. Surrogate Motherhood (DP 18, 1988) 3.7 - 3.11.
14. Rebecca M Albury (SB 19, 1988); Presbyterian Women’s Association of Australia in NSW (SB 21, 1988 B Guthrie and M Kingshott (SB 28).
15. Adoption Legislation Review Committee (Victoria) report 1983, Chapter 4; Susan F Koffman, Step - parent Adoption, a comparative analysis of laws and policies in England and the United States (1984) 7 Boston College International and Comparative Law Journal 469, 474-475.
16. The English equivalent is Children Act 1975, s37(1). And see comments in Cinderella Revisited Family Law Council, June 1988, 3.1-3.13.
17. In particular, it has been thought undesirable that older children from divorcing families should be adopted by the new spouse of one of their parents . Re S. (Infants) [1977] Fam 173; Re S (A Minor) (Adoption or Custodianship) [1987] Fam 98. See aIso S Cretney, Principles of Family Law (Sweet & Maxwell 1984) 431, note 97.
18. Children (Care and Protection) Act 1987 s42, discussed in DP 18 at paragraph 3.28.
