I. THE ARTIFICIAL CONCEPTION REFERENCE AND SURROGACY

A. Surrogate Motherhood: Overview

1.1 This Discussion Paper concerns surrogate motherhood, described in the terms of reference for this Inquiry as “arrangements under which a woman agrees to bear a child for another person or persons”. It is a subject that has aroused considerable interest following widespread publicity given to recent instances of such arrangements in a number of countries, including Australia. Although in these cases attention has focused on disputes over the custody of children born as a result of surrogate motherhood arrangements, the issues involved range well beyond the question of custody.

1.2 The project on surrogate motherhood forms part of the Commission’s references on Artificial Conception, further details of which appear below. This reference also encompasses human artificial insemination and in vitro fertilization (IVF). Surrogate motherhood may be quite different from these other projects, in that surrogacy arrangements need not necessarily involve techniques of artificial conception.

1.3 In a surrogacy arrangement the child could be born as a result of artificial insemination, but could be conceived by natural sexual intercourse. It is also possible for the surrogate mother to carry a child conceived by IVF. In April 1988 extensive publicity was given to what was said to be the first IVF surrogacy in Australia.¹

1.4 While the Commission has made an extensive study of the available literature on surrogate motherhood, its information on the practice of surrogacy in Australia is very limited.This Discussion Paper has been prepared to generate public discussion on these issues, and to seek advice from interested individuals and organisations on the need for law to regulate surrogate motherhood arrangements. The Commission also hopes that, in the course of this discussion, further information will become available as to the incidence and variety of surrogacy arrangements in Australia.

B. The Terms of Reference

1.5 Official Inquiries into artificial conception in New South Wales and the other Australian States began in 1982, following an initial analysis and recommendation by the Australian Law Reform Commission in its 1977 report, Human Tissue Transplants. In particular, that Commission suggested that legislation should address in vitro fertilization, artificial insemination and related procedures.²

1.6 In 1983, agreement was reached in New South Wales between the Minister for Health, the Attorney General and the Minister for Youth and Community Services that this Commission should inquire into all aspects of artificial conception including surrogacy arrangements. Consequently a reference to the Commission was given by the Attorney General on 5 October 1983 with the intention that the Commission should take over the work begun by the Advisory Committee on Human Artificial Insemination, established in 1982 by the Minister for Youth and Community Services. The terms of reference appear on page xi and have been collectively entitled Artificial Conception by the Commission.

C. Work under the Reference

1.7 The Artificial Conception reference has been divided into three projects: human artificial insemination, in vitro fertilization and surrogate motherhood. The Commission issued a Discussion Paper on human artificial insemination in December 1984, and, after a public hearing in April 1985, completed that project with the publication of its Report Human Artificial Insemination in July 1986.³ The Report, which was accompanied by draft legislation, was tabled in Parliament by the Attorney General on 28 May 1987. A major Discussion Paper on in vitro fertilization was published by the Commission in July 1987.⁴ The Commission’s Report In Vitro Fertilization was released August 1988.⁵

D. Surrogacy Project

1.8 The preparation of this Discussion Paper follows a thorough review of the available literature in legal and non-legal fields relating to surrogate motherhood. The Commission has examined the results of other official studies on surrogacy conducted elsewhere in Australia, and in New Zealand, the United Kingdom, Canada, West Germany and by an expert committee appointed by the Council of Europe.

1.9 The Commission has also undertaken a nationwide public opinion poll on surrogate motherhood. The principal aspects of surrogacy arrangements on which public opinion was sought were the following:

• General attitudes to surrogate motherhood itself;
• Payment of the surrogate mother;
• Involvement 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.

The survey, which was conducted in November 1986 was made the 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 1987.⁶ Information gained from the survey is discussed in more detail in Chapter 5 of this Discussion Paper.

II. OUTLINE OF THIS PAPER

1.10 This Paper has been prepared by the Commission to promote discussion on surrogate motherhood, and to invite community participation in resolving the many difficult issues connected with surrogacy. The Commission intends to consult widely before formulating its recommendations.

1.11 The factors which might influence people to explore the possibility of a surrogacy arrangement are examined in Chapter 2. That chapter also discusses the manner in which such arrangements might be made. The Paper then discusses, in Chapter 3, the legality of different types of surrogacy arrangements under the existing law of New South Wales. Although the law makes no special provision for the regulation of surrogacy arrangements, established principles of common law and existing statutory provisions could regulate many aspects of the practice. There follows in Chapter 4 a consideration of the responses to surrogacy, where the Commission summarises the conclusion of official Inquiries on the subject in Australia and elsewhere, and reports on legislative activity. Chapter 5 discusses the informal responses to these issues. It presents the principal findings of the nationwide public opinion survey undertaken by the Commission. The ethical issues involved in surrogacy are examined in Chapter 6, which also addresses the question of whether legal regulation of surrogacy is appropriate. Finally, in Chapter 7, the Commission outlines some tentative views on some aspects of surrogacy, and indicates specific issues on which community comment is sought.

III. WELFARE OF CHILD PARAMOUNT

1.12 There is one view which the Commission wishes to put forward quite firmly even at this early stage in the inquiry. We would require very convincing argument to dissuade the view that in any legal proceedings in surrogacy the welfare of the child should be the paramount consideration. This is the principle which governs all proceedings involving children in family law and it is the principle we have applied throughout the reference on Artificial Conception.

1.13 Application of the paramountcy principle would mean that no agreement could be enforced which did not enhance the welfare of the child. To the extent that they did not coincide with the best interests of the child, the rights of the parties as given in a surrogacy agreement would be unenforceable. As in all custody proceedings, the adults involved would have no guarantee that the arrangements they made for the care of the child would be respected by the reviewing court. The Commission regards this principle as so fundamental in family law that it should not be changed to accommodate the needs of parties to a surrogacy arrangement.

1.14 Acceptance of the paramountcy principle would have an important impact on the Commission’s treatment of the reference for it would settle the important issue of custody. There are, of course, many other issues involving surrogacy which are addressed in this Discussion Paper.

IV. PUBLIC COMMENT SOUGHT

1.15 An indication is given of the views of the Commission on particular issues at various points in this Discussion Paper. Apart from the one expressed above, the Commission’s views are tentative and should not be regarded as in any way inhibiting those who wish to put forward an alternative point of view, or who wish to criticise the tentative proposals in this Paper. No firm views have been reached within the Commission on any issue. When the Commission has had the opportunity to consider comments and submissions on the issues raised in this Discussion Paper, its final recommendations will be presented to Parliament in the form of a report on surrogate motherhood.

1.16 The Commission is also seeking information. Much of the the information we have on the incidence of surrogacy, and the forms that it takes in this State, is based on reports in the media. We also have some direct information from people who have taken part in a surrogacy arrangement or who may wish to do so in the future. Some information has been provided by members of the medical profession who have been approached to assist in making arrangements. The Commission is keen to receive any further information that people are willing to give in order to establish a fuller picture of the use of surrogacy in New South Wales. If requested, the information will be treated as confidential.

1. There have been a number of recent press reports and comments concerning a surrogacy arrangement in Melbourne involving conception by in vitro fertilization, which is said to be the f irst case of its kind in Australia: “Woman to bear her sister’s baby” The Sydney Morning Herald 8 April 1988 at 1; “Sister surrogacy, ‘a moral and loving act’” The Australian 8 April 1988 at 1; “Doubts over legal parentage of IVF baby” The Age 8 April 1988 at 1; “Surrogate mum: this is the ultimate in sisterhood” The Weekend Australian 9-10 April 1988 at S; “Surrogate baby’s future to be decided in court” The Sydney Morning Herald 9 April 1988 at 2; “The issue of surrogacy” (editorial) in The Sydney Morning Herald 9 April 1988 at 28; “A battle yet to come for IVF baby” The Sydney Morning Herald 9 June 1988 at 2.

2. Australian Law Reform Commission Human Tissue Transplants (ALRC 7, AGPS, Canberra, 1977) at ch 4.

3. New South Wales Law Reform Commission Human Artificial Insemination (LRC 49, NSW Govt Printer, 1986).

4. New South Wales Law Reform Commission In Vitro Fertilization (DP 15, NSW Govt Printer, 1987).

5. New South Wales Law Reform Commission In Vitro Fertilization (LRC 58, NSW Govt Printer, 1988).

6. New South Wales Law Reform Commission Surrogate Motherhood: Australian Public Opinion (RR 2 , NSW Govt Printer, 1987). See also 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; Margaret Brumby “Australian community attitudes to in-vitro fertilization” (1983) 2 Medical Journal of Australia 650; “‘Okay’ to Surrogacy”, The Bulletin 12 July 1988 at 17; “No-pay Surrogacy Favoured”, The Weekend Australian 18-19 June 1988 at 2.