PROVISIONAL PROPOSALS FOR REFORM
1. Private surrogacy arrangements
The Department of Community Services should only facilitate adoptions in these situations where the following circumstances exist:
- an order for guardianship or custody would not make adequate provision for the child and an order for adoption would be in his or her best interests;
- the child has an established relationship with the social parents;
- the child is aware of his or her genetic relationships with the birth mother, the social parents and any gamete or embryo donors;
- the child has access to information about the birth mother and the birth family;
- the child understands the reasons why the adoption might take place;
- the child is able to participate in the adoption proceedings by expressing a view on the adoption;
- the birth mother has access to the relevant information, consents to the adoption and receives ongoing information about the child’s health, progress and well being; and
- the birth mother had a period of time in which to revoke her consent after the birth of the child.
2. Donor reproduction technology
It is the Commission’s provisional proposal that the issues of genetic identity and access to information for children born with the aid of donor reproduction technology should not be dealt with in adoption legislation. These issues are a matter for specialised legislation on that subject.
POINTS FOR FURTHER DISCUSSION
Should adoption legislation regulate embryo donation?
INTRODUCTION
The scope and purpose of the review
10.1 The Commission has been asked to assess the relevance of donor reproduction technology1 and surrogacy for adoption legislation. The implications of donor reproduction technology and surrogacy for our society go much wider than their relevance to adoption. This Discussion Paper is limited to a discussion of aspects that are relevant to the review of adoption legislation. There are six key issues that underpin discussion about the relationship between donor reproduction technology, surrogacy and adoption.
- All three involve a split between biological parenting and social2 parenting. In each case, children are not genetically related to one or both of their social parents.
- The major difference between adoption, donor reproduction technology and surrogacy is that adoption is controlled and regulated by a legislative system which focuses on the physical and emotional needs of children and aims to secure information for them concerning their genetic relationship with at least one of their birth parents. This securing of information is now considered to be a fundamental part of providing for the welfare of these children. Children born as a result of donor reproduction technology or surrogacy arrangements have no such system by which they can access this type of information.
- Donor reproduction technology continues to promote deception and secrecy in the same way in which it was promoted by adoption in the past. The potential for secrecy in donor reproduction technology is the most persuasive argument in favour of regulation, especially in light of the development of openness in adoption.
- An important aspect of adoption law is the principle that the best interests of the child should be the paramount consideration when making adoption orders. Reproduction technology and surrogacy arrangements focus on meeting the desires of infertile people and analyse success in terms of the number of live births.
- Adoption law was developed to facilitate the split between genetic and social parenting and reflects the importance of the birth process to the determination of motherhood. Donor reproduction technology has introduced a further split between genetic and gestational motherhood that has not previously been contemplated by adoption legislation.
- Adoption deals with children who already exist, whereas donor reproduction technology and surrogacy are, at least initially, concerned with potential children. Adoption, under the current legislation, can only begin in earnest after the birth of the child and involves counselling of the birth mother and careful assessment of the adoptive parents. Adoptive parents are counselled about the emotional ramifications of parenting someone else’s child. Donor reproduction technology and surrogacy begin well before the child is born and often involve little or no counselling of birth parents and social parents. Social parents are assured that their relationship with the child will be the same as if it were their own genetic child. Despite these differences, the end result of all three processes is identical. Children live with non-genetic social parents and may desire or need information about their genetic parent(s).
10.2 In Chapter 8 of the Issues Paper, we defined reproduction technology and surrogacy and set out some initial issues for discussion. Very few submissions were received on the issues raised. The main questions to be considered in this chapter are:
- Should adoption legislation deal with children born as a result of surrogacy arrangements, that is, should adoption legislation be used to resolve the legal status of children born as a result of surrogacy?
- Should adoption legislation refer to children who have been born with the aid of donor reproduction technology? To what extent does the relationship between donor reproduction technology and adoption require adoption legislation to make reference to the recording of and access to accurate records of an individual’s genetic history?
The best interests of the child as paramount
10.3 Given the developments in laws relating to children and children’s rights discussed throughout this Paper, the focus of this review is on the children who are the products of the donated gametes,3 and their needs at all stages of their lives4 (as adults as well as children). Much of the focus of reproduction technology and surrogacy is on fulfilling the desires of infertile couples and on analysing the rates of live births achieved by using the various technologies.
Given that the major purpose of reproductive technology is to create a child who would not otherwise have been conceived, it seems clear that the community has a particular responsibility to promote and protect the interests, needs and welfare of that child. (Indeed, the question may well be asked - is it in the interests of a child to be created in this way to satisfy the needs of adults?).5
10.4 Many of the submissions agreed that there is a need for a legal framework to protect the rights and meet the needs of children who have already been born as the result of reproduction technology and/or surrogacy arrangements, irrespective of the current legal status of these practices.
The language of reproduction technology and surrogacy
10.5 The discussion of reproduction technology naturally involves some reference to technological processes. This Chapter includes some technical terms because they provide the most succinct and accurate description of the techniques involved. This technical language may be unfamiliar to some people and for this reason definitions have been set out in footnotes.
10.6 The term “donor reproduction technology” is used in this chapter. It refers to the birth of a child with the aid of technology and donated genetic material (ie one or both of the child’s social parents are not his or her genetic parents). If a couple uses their own gametes and technology merely assists the combining of the sperm6 and ovum7 or the implantation of the embryo in the genetic mother, this has nothing to do with adoption legislation and is not referred to in the discussion about the use of reproduction technology in this Paper.
10.7 It is important to understand that donor reproduction technology includes the process of sperm donation. Sperm donation has been likened to blood donation but it is completely different in that sperm is donated with the intention of creating a new and autonomous individual who has his or her own needs and rights in relation to identity. This new individual continues to have a genetic relationship with the donor.
10.8 Technology has made it possible to divide the processes of parenthood, so that genetic input, fertilisation, gestation and birth can be separated, and each performed by different people. These divisions make it difficult to characterise the participants as “father” and (especially) “mother”. The following terms are used throughout this chapter:
Biological parents - to describe the people whose sperm and ovum are used to create the child;
Birth mother - the woman who carries the child and gives birth, whether or not she has used her own ova or donor ova; and
Social parents - to describe the parents who raise the child and have the care of and responsibility for the child.
10.9 The woman who gives birth to a child as the result of a surrogacy arrangement is often referred to as the child’s surrogate mother. The term “surrogate mother” creates definitional difficulties. It is really a misnomer. In many cases the woman giving birth actually donates one of her own ova as well as gestating the child and is thus the child’s biological mother. The real difference between a birth mother in a surrogacy arrangement and the birth mother of an adopted child it that the former mother has undertaken pregnancy with the intention of placing the child with another couple after the birth. Even if the birth mother uses both donor ova and donor sperm or a donated embryo to achieve the pregnancy, she is still the woman who gives birth to the child. Many of our laws reflect the importance of the birth process to the determination of motherhood. It is only technology that has recently allowed us to separate genetic and gestational mothering.
10.10 The term “birth mother” is used in this Paper to describe the woman who caries the child and gives birth to it.
10.11 Throughout this Paper the Commission has made reference to “identifying information” and “non-identifying information”. In this chapter, identifying information means the donor’s name. Non-identifying information means biological data, information about the donor’s health, education, interests, appearance and other information that does not allow the donor to be traced.
SURROGACY ARRANGEMENTS
Surrogacy in New South Wales
10.12 Although there is no legislation in New South Wales allowing either commercial or altruistic surrogacy, private surrogacy arrangements are taking place in this State. The Commission has also heard anecdotal evidence about Australian couples travelling to the United States to have their sperm and ova implanted in American surrogates. Alternatively, they are flying to the United States with frozen embryos from IVF units in Australia where American clinics are arranging the implantation of the embryos in birth mothers. The couple then fly back to America in nine months and pick up their child. If birth certificates are issued in the name of the commissioning parents, there is no need for that couple to adopt the child. Couples may also use donated gametes from either Australia or America. These examples are given to illustrate the extent to which surrogacy may be taking place, both within New South Wales and across State boundaries.
10.13 Surrogacy contracts are clearly in conflict with the principles of adoption under the current legislation. The Adoption of Children Act 1965 (NSW) prohibits the making of private adoption arrangements and the facilitation of adoption in exchange for money. The power to make adoption arrangements lies only with the Department of Community Services and the authorised adoption agencies. Adoption practice now requires a new level of openness and honesty about the reality of genetic and social relationships. A court has responsibility for the making of adoption orders and related orders. The provisional proposals made by the Commission in Chapter 4 of this Paper suggest that individuals closely involved in the child’s life should have adequate opportunity to express their views during the decision-making process. All available alternatives to adoption should be considered in relation to each particular child. Surrogacy contracts represent the aims and objectives of the adults involved and do not incorporate these principles.
10.14 The Department of Community Services has been approached to facilitate adoption applications in cases where the child has come to live with the prospective adoptive parents as the result of private surrogacy arrangements. Usually the child has been living with the social parents for some period of time and has developed a relationship with them. The social parents are usually seeking adoption to make themselves the child’s legal parents. In the cases where it is clear that a surrogacy arrangement has taken place, the Department has refused to assist with an adoption and has referred the parties to the range of orders available from the Family Court. There has only been one adoption application supported by the Department in these circumstances. In that case it was not confirmed that a private surrogacy arrangement had taken place.
Criticisms of surrogacy
10.15 Many submissions criticised surrogacy contracts and arrangements on the basis that they involve the buying and selling of children and women.
Infertility, like blindness or any physical incapacity, is sad. But just as the blind have no moral or legal right to be cured with another’s eyes, the infertile have no right to cure their physical incapacity with another’s child. No child should be created as a product to be sold or traded.8
Research indicates that surrendering mothers in adoption suffer detrimental, often devastating, consequences throughout their lives as a result of the surrender. There is no reason to believe parents separated from their children as a result of contracts for non traditional reproduction will suffer any less.9
10.16 Surrogacy arrangements were perceived to be against the best interests of the child. The intention of all parties that the child be transferred from the birth mother to the social parents was seen to prevent the child from experiencing a normal life and to be in opposition to the aims and objectives of adoption.
It is clear that these arrangements are neither intended nor designed to serve the best interests of children or society, but to supply a desirable product to consuming couples.10
10.17 Other submissions felt that surrogacy arrangements involved all of the most painful aspects of adoption but contained none of the safeguards and supports that currently exist in the practice of adoption.
Whilst acknowledging that there may be circumstances in which, in the interests of the child, legal adoption should be an option, the law and the adoption system should not in any way be used to encourage practices in which women and children are made use of, and which all our knowledge and experience suggest have the potential to inflict greater losses and pain than those recognised as an inescapable part of adoption.11
10.18 After his visit to Australia, the Special Rapporteur to Australia from the United Nations Commission on Human Rights, Mr Vitit Muntarbhorn commented in his Report on the tenuous line between surrogacy and adoption.12 His recommendation to the Commission on States/Human Rights was that States should pass anti-surrogacy legislation.
They should liaise with the federal authorities to prevent Australians from entering into surrogacy arrangements overseas. This is an area where extra-terrestrial application of laws may be recognised in the context of Australians seeking to bypass local jurisdiction.13
10.19 Some submissions felt that although surrogacy should remain illegal, there should be an opportunity for commissioning parents to adopt a child born as the result of surrogacy arrangements.
Without detailing all the problems in this area, WAA believes that surrogacy should remain illegal. In these circumstances, any separate category of adoption for reproductive technology would amount to tacit approval and should not be considered.
WAA believes instead that the circumstances of surrogacy bring it fairly neatly into the area of special case adoptions, as in most cases the adoptive father will also be the biological father. This means that the adoption is similar to that by a step-parent.
In these cases, as in all cases, the welfare of the child should be the primary concern.14
Adoption legislation and surrogacy
10.20 There is still conflict within the community regarding the ethics of surrogacy arrangements and there has been no development of policy by the New South Wales government. There have also been criticisms of surrogacy on an international human rights level. It would therefore be inappropriate for adoption legislation to make special arrangements to validate surrogacy contracts.
10.21 However, in certain circumstances, adoption may be in the best interests of a child already born as the result of a surrogacy agreement. In these cases, the Department of Community Services should be able to facilitate an adoption application. The decision to file an adoption application must be based on protecting the rights and needs of the child without any reference to a contract between the adults involved in the arrangement. Such a use of the legislation would not encourage people to undertake private surrogacy arrangements as the social parents would have no inherent right to adopt the child if the birth mother wishes to place her child for adoption.
10.22 The Western Australian Adoption Legislative Review Committee made the following recommendations in their 1991 Report. They began by stating that an arrangement made for a child born as the result of surrogacy should always be in the best interests of the child.15 The Report recommended that the child be legally the child of the birth mother unless she consents to the child’s adoption in the usual manner stated in the adoption legislation.16 No specific provision was made to legally recognise the right of the commissioning parents to adopt the child.17 If they are not genetically related to the child, they should be considered equally with all other adoption applicants. If there is a genetic relationship between the child and one or both of the commissioning parents, then the commissioning parents may adopt when they have obtained custody of the child and have established social parenthood so as to make them eligible to adopt under that category.18 It was recommended that the children born as the result of a surrogacy arrangement who became the subject of an adoption, should have the same information rights as any other adopted person.19
10.23 These recommendations were driven, not only by the desire to bring the information rights of these children in line with other adoptees, but also to protect the interests of birth mothers who may be considering placing their children with others as part of a surrogacy arrangement.
10.24 The Commission restates and supports the recommendation contained in its 1988 Report that:
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.20
10.25 The Commission supports the notion that the process of adoption protects public interests by requiring voluntary informed consent from the biological parent(s), prohibiting baby-selling and requiring an investigation of the adoptive parents to ensure that they are fit parents and to protect the welfare of the child.21 Private surrogacy arrangements should not be supported in ways that diminish these provisions. The Department of Community Services should only facilitate adoptions where the following circumstances exist:
- an order for guardianship or custody would not make adequate provision for the child and an order for adoption would be in his or her best interests;
- the child has an established relationship with the social parents;
- the child is aware of his or her genetic relationships with the birth mother, the social parents and any gamete or embryo donors;
- the child has access to information about the birth mother and the birth family;22
- the child understands the reasons why the adoption might take place;23
- the child is able to participate in the adoption proceedings by expressing a view on the adoption;
- the birth mother has access to the relevant information, consents to the adoption and receives ongoing information about the child’s health, progress and well being; and
- the birth mother had a period of time in which to revoke her consent after the birth of the child.
10.26 These proposals seek to bring this form of adoption within the normal process of adoption but maintain enough flexibility to allow adoption to take place if this will promote the best interests of the child. The proposals do not diminish the policy that private arrangements for the adoption of children are unacceptable because no adoption will be facilitated unless all the general requirements for adoption have been fulfilled. If a birth mother approached the Department and wished to place her child for adoption in circumstances where the above conditions were not fulfilled, she would be able to do so but only using the normal form of local adoption. She would be unable to nominate adoptive parents outside the Department’s pool unless the adoption was to be intra-family.24 The Commission proposes that social parents who have no genetic link to the child should be considered equally with all other adoption applicants. This is consistent with the approach recommended in Western Australia. Any other conclusion may encourage people to circumvent the efforts of the legislation to preclude private adoption arrangements and would not be in the best interests of the children involved. The Commission invites comments on these provisional proposals.
REPRODUCTION TECHNOLOGY
10.27 In 1991, assisted conception by in vitro fertilisation (IVF)25 and gamete intrafallopian transfer (GIFT)26 was used to treat infertile couples at 21 units in Australia and resulted in 1,064 live births after IVF and 945 after GIFT. The few submissions that responded to these issues raised a series of problems surrounding the use of donor reproduction technologies and explored ways in which adoption legislation may be able to resolve them.
Genetic identity and access to information
10.28 The similarities between children who have been adopted and children born with the aid of donor reproduction technology are that the children are not genetically related to one or both of their social parents and have a genetic relationship with a third party or parties. It can be argued that children born with the aid of donor reproduction technology should have the same access to information about their genetic heritage that is currently available to adopted children. Submissions to the Commission drew on the parallels between adoption and donor reproduction technology to argue that children born as a result of these methods need to have in place similar legislative mechanisms to create an atmosphere of openness and to acknowledge the reality of genetic relationships. There is no clear argument made that adoption legislation is the best way to achieve this but the suggestion has been made because it provides a system which is already in place and has already learned the dangers of secrecy and other types of practice.
However one important lesson gained from adoption practice may be relevant - in that full and open information is essential to the child. Any child born as a result of reproduction technology or by surrogacy, must have entitlement to information about the circumstances and all aspects of their conception, birth and genealogy.27
10.29 In the past, the practice of adoption involved secrecy and the alteration of birth records. This traditional approach has been subject to major review in recent years and the result has been greater openness and acceptance of the reality of adoption.
10.30 Donor reproduction technology, involving the use of donated gametes or embryos is currently carried out in a similar atmosphere of secrecy and restricted information. Research in the United States suggests that children born with the aid of reproduction technology are likely to experience the same feelings of “genetic bewilderment”28 as adopted children and need the same information that adoptees require. There is also likely to be the same pressure on a family that is trying to keep such an issue a secret and the same level of resentment present when the secret finally comes to light.
10.31 The view taken by some submissions was that adoption legislation could be used to ensure that children born with the aid of reproduction technology have access to information about their genetic heritage.
10.32 A strong argument can be made in favour of giving these children access to such information. Support for such an argument comes from:
- international law;29
- legal and social work theory in the field of adoption;30
- research of the psychological concept of the need to define one’s own identity;31
- the need for accurate records of genetic relationships32; and
- current research on the psychological consequences of donations for donors of genetic material33.
10.33 Many submissions suggested that the donors made a gift of their gametes and did not require nor have the right to require information about any children born as a result. Several studies have suggested that there is a far more complex relationship between the donor and their genetic material and that altruistic desires to help infertile couples may only be a part of the reason why donors make donations.34 The most recent of these studies did acknowledge that there were conflicting results between studies made on the attitudes and motivations of sperm donors but felt that the differences reflected the recruitment methods and attitudes of the clinics involved. The author concluded that:
10.34 Despite the analogies between adoption and donor reproduction technology, there are many difficulties in applying the adoption model to children born with the aid of donor reproduction technology. The current process of adoption begins with an assessment of the needs of the child and proceeds by trying to meet those needs through the provision of parental care. Donor reproduction technology begins without an assessment of the needs of the child. It is often assumed that the needs of the child will be fulfilled because the desires of the infertile social parents have been fulfilled. An order for adoption granted after conception or birth would go against the provisions of the adoption legislation. This would mean that the Adoption of Children Act could be used to consolidate private arrangements that may not be in the best interests of the child. Once the child has been born, it would be impossible to apply the rigorous measures for the taking of consents and the assessment of adoptive parents that are the core of present adoption practice. It was also the conclusion of the Western Australian Adoption Legislative Review Committee that it would be inappropriate for adoption legislation to deal with the rights and needs of a child, born with the aid of reproduction technology, to access accurate biological information. This issue was felt to be outside the scope of the adoption legislation and better dealt with in its own right.
10.35 It would be possible, of course, for donor reproduction technology to incorporate the lessons that have already been learned in the adoption field. Social parents could enter into undertakings to tell their children of their genetic status and exchange information with genetic parents in a similar manner. Identifying and non-identifying information about donors and children could be stored on a central register.
We are quite open to the idea of a Federal or State registry of donors and children, it is probably the only way that information can be kept properly and be available to children when and if they desire to find out information about their donors. I think that his should contain non-identifying information about the donor such as; education, career, interests etc, and only identifying information if that is what the donor wishes.36
10.36 Children could have access to this information at different stages of their lives. Each of the participants in the register could up-date the information about themselves. All of these possibilities would be better dealt with by specialist legislation. Such an Act could also take into account the myriad of other issues surrounding donor reproduction technology that are not relevant or analogous to adoption.
Embryo donation and adoption
10.37 It was suggested that adoption legislation may be able to resolve some of the problems currently surrounding the donation of frozen embryos by one couple to another37. Australia has led the world in the freezing of human embryos. Developments in technology have meant that the use of frozen embryos now offers just as good a chance of achieving pregnancy as the use of fresh embryos.38 Use of this technology to reduce the amount of ovarian hyper-stimulation and surgical intervention has led to a growing population of frozen embryos, some of which may turn out to be in excess of the requirements of the couple that have created them. People may donate embryos when they have fulfilled their own reproductive needs and wish to help other couples in the program or when they find the alternatives of destruction or indefinite storage of the embryos unacceptable.
10.38 In Australia, it has not yet been clearly established in law who constitutes the legal parents of a child born as the result of a donated embryo. The Artificial Conception Act 1984 (NSW) sets up a presumption of fatherhood in the situation where a woman has undergone a fertilisation procedure.39 It is not clear how this presumption relates to ova donors or the donors of embryos. The suggestion has been that people should be required to formally relinquish and adopt embryos in order that all parties are protected in the same manner as they are currently protected when a child is adopted. One argument is that there is such a vast difference between embryos and children that the adoption legislation would be unable to deal with the relinquishment of embryos. There is a continuing debate about whether or not an embryo constitutes a human life.40 There is currently no consensus on this issue. Despite this, the technology continues to be used. However, it is worthwhile remembering that every donated embryo that succeeds to the stage of a live birth becomes a child whose rights need to be protected whether or not they have been so protected at any stage prior to birth.
10.39 Some of the submissions to the Commission argued that the donation of excess frozen embryos to other people constitutes the adoption of a child born as a result, the only difference being that the child is only a potential child at the time of the donation and is much earlier in its developmental process. In this view, the adoption of embryos should be controlled by the adoption law in order to protect the best interests of that child and to preserve information and records regarding that child’s genetic history.
10.40 Some feel that people may be pressured into donating excess embryos and that using the concept of adoption would mean that they would have to be properly counselled about the action they were taking.
Parents with IVF children need to be counselled that any spare embryos being donated are the full biological brothers and sisters of their children. The small potential risk of subsequent consanguinity41 may dissuade some from donation, but a bigger impediment lies in the absence of protective legislation for the donors.42
10.41 Donor embryos caused the most concern for participants in the Review in terms of the danger of consanguineous relationships. Such relationships may have devastating psychological effects on the participants as well as the associated health risks for any children of that relationship. Incest is a strong cultural taboo amongst all societies. Some participants felt that legislation controlling the transfer of embryos by adoption and attaching information rights to the resultant child would be the most effective way of preventing such an occurrence and of protecting couples and clinics from potential legal liability.
10.42 Of all the different types of donor reproduction technology, embryo donation is the most analogous to adoption. As stated above, most people participating in assisted fertility programs create embryos with the intention of using them themselves. Their intention to transfer the embryos to someone else may only have arisen when they were unable to continue with the plan to conceive or had given birth to as many children as they wished to have the care of. Children born as a result of an embryo donation and children who have been adopted after birth are similar in that they are genetically unrelated to their social parents. They may have full-blood sisters or brothers growing up in other families. They may be curious about their genetic identity and they may have an emotional or a practical need to access up-dated information concerning their genetic background.
10.43 It would be straightforward to apply the principles of adoption in these cases. It would be possible to provide counselling and information to the donating parents, assess the needs of the child and make an assessment of the receiving couple prior to the donation taking place. Donating parents could place their embryos for adoption and take part in the selection of receiving parents from a pool of people who have been assessed as suitable adoptive parents. The focus would then be on meeting the needs of the potential children involved rather than justifying the actions of individuals. Social parents could be required to enter into an open adoption arrangement with genetic parents so that updated information could be exchanged. One argument against the use of the adoption legislation in these cases is that adoption operates to confirm the legal status of the social parents because they have not given birth to the child. In the case of embryo adoption, the social parent gives birth to the child and is thus already the child’s legal parent. Although it is the case that adoption assigns the status of legal parent to adoptive parents, this is a secondary response to the aims and objectives of adoption. The real starting point in adoption is to provide for the welfare of children who cannot be raised by their birth parents. It may be that, from the point of view of the interests of the children, the analogies between adoption and embryo donation are more crucial than the differences. The Commission invites comments on the use of adoption legislation to regulate the process of embryo donation.
FOOTNOTES
1. The term “donor reproduction technology” has been used in order to avoid any ambiguity when discussing the relationship between reproduction technology and adoption legislation. The cases where reproduction technology has been used by the genetic parents, birth parents and social parents are one in the same are not analogous to adoption and are not the subject of this review.
2. The term “social parent” describes the parent who raises the child and has the day to day care of and responsibility for the child.
3. A gamete is any germ cell, whether ovum or sperm. Sperm and ova donors may be known or unknown to the recipients. They are often relatives or may be other women on IVF programs who have collected surplus gametes during the course of the program.
4. The Commission’s attitude is supported by current trends in legal theory regarding the development of children’s rights and legislation to protect children. Australia’s ratification in 1990 of the Convention on the Rights of the Child is evidence of our commitment to the new way of thinking about children.
5. T Harper “Reproductive Technology - The Issues” Institute of Family Studies Newsletter, No. 11 December 1984 at 7.
6. Sperm or spermatozoon is the mature male sex cell, produced in the testicle.
7. An ovum is the mature female sex cell, produced in the ovary. When fertilised by a spermatozoon, it is capable of developing into a new individual. The plural form is ova.
8. Mothers for Contact in Adoption. Submission made to the 1989 review of surrogacy undertaken by the National Bioethics Consultative Committee, at 3.
9. Mothers for Contact in Adoption, Submission at 5.
10. Mothers for Contact in Adoption, Submission at 6.
11. New South Wales Committee on Adoption, Submission (9 September, 1993) at 54-55.
12. V Muntarbhorn Report Submitted by the Special Rapporteur appointed in accordance with Commission on Human Rights resolution 1992/76, Addendum, Visit by Special Rapporteur to Australia Commission on Human Rights Forty-ninth session, Agenda item 24, 9 February 1993 at 11.
13. V Muntarbhorn, at 23.
14. Women’s Action Alliance (NSW), Submission (1 September, 1993) at 4.
15. Western Australia. Adoption Legislative Review Committee A New Approach to Adoption: Final Report (February 1991), Recommendation 117.
16. Recommendation 118.
17. Recommendation 119.
18. Recommendation 120.
19. Recommendation 121.
20. New South Wales. Law Reform Commission Artificial Conception: Surrogate Motherhood (Report 60, 1988), at xix and paragraphs 4.45-4.49.
21. B Atwell “Surrogacy and Adoption: A Case of Incompatibility” Colombia Human Rights Law Review Vol 20(1) Fall 1988 at 16-31.
22. The New South Wales Committee on Adoption, Submission (9 September, 1993).
23. The New South Wales Committee on Adoption, Submission (9 September, 1993).
24. This was the proposal of the Australian Capital Territory’s Attorney General’s Department in Surrogacy Arrangements in the ACT (Discussion Paper, October 1993) at 4. This Discussion Paper goes further than the Commission and suggests that adoption should be prohibited in circumstances where there has been a surrogacy agreement unless all the requirements of the Adoption Act 1993 (ACT) are fulfilled and relatives, as defined in the Act, are involved.
25. In Vitro Fertilisation (IVF) is an assisted fertility procedure using the woman’s own ovum or donor ova and the husband/partner’s sperm (AIH) or donor sperm (AID). The procedure involves collection of oocytes (ova) from the ovaries. The ova are then fertilised outside the body.
26. Gamete intra-fallopian transfer (GIFT) is the process whereby ova and sperm are threaded into a catheter with an air bubble between them. They are then placed into the fallopian tube where hopefully they fertilise and move down the fallopian tube to the uterus.
27. Centacare Catholic Community Services (Adoption Services) Submission (31 August, 1993), at 22.
28. It is claimed that this phrase was first used by E Wellish, a worker in an English child guidance clinic, in 1952. It has come to refer to a state of confusion or uncertainty about oneself that stems from little or no knowledge about one’s birth parents and genetic history. See R Scott “Who am I ? :Children With Problems of Identification Including Adoption, IVF and AID” in I Fraser and others (eds) Obstetrics, Gynaecology, Psychiatry and Family Planning 1984, Proceedings of the combined annual congress of the Australian Society for Psychosomatic Obstetrics and Gynaecology, and the Biological Sciences Committee of the Australian Federation of Family Planning Associations, (1-4 March, Canberra 1984) at 33.
29. The Convention on the Rights of the Child includes a number of provisions that seek to protect the rights of parents, or rather, the rights of children to protection of their relationship with their parents. See especially Arts 5, 7(1), 8, 9, 16(1) and 18(1). For Example, Article 7 provides that the child shall have, among other things, “as far as possible, the right to know and be cared for by his or her parents.” Article 8 commits States to respect the right of the child to “preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.” These provisions do not specifically deal with adoption and do not seem to have been intended to interfere with the adoption practices of individual States. The Commission, at this stage, supports the notion that rights and protection afforded by the Convention should be regarded as a statement of the minimum standards to be applied and should not act to limit the protection.
30. “After many years of unnecessary secrecy, evasiveness and often falsification, studies have now shown how important it is for all children, whether adopted, fostered or brought up in step-parent relationships, to know the truth about their parentage and origin. This applies equally to children born by AID”: J Triseliotis, Recent Developments in Adoption Mimeo 17 April 1980. See also R Winkler and S Midford “Biological Identity in Adoption, Artificial Insemination by Donor (AID) and the New Birth Technologies” Journal of Early Childhood Vol 11(4) November 1986 at 43-48. According to visiting academic, Professor Dieter Giesen, Germany’s constitution enshrines the right of children to know their genetic origins. It is his view that every child has the right to know of their biological parentage and that to fail to provide for such a right was unethical. See C Milburn “IVF Law Seen as Unethical” The Age 9 July 1993 at 5. Some behavioural theorists also promote openness in this situation, in order to preserve the psychological health and well being of the entire family unit. See P Mahlstedt and D Greenfeld “Assisted Reproductive Technology with Donor Gametes: the Need for Patient Preparation” Fertility and Sterility Vol 52 No 6 December 1989, The American Fertility Society, at 910.
31. Many studies refer to the importance of identity for the growing child and the young adult. The concerns experienced by adoptees may be the same for children born with the aid of reproduction technology. The Commission spoke to a child of ten years who was aware that she was a donor insemination child. She had thoughts about the donor and was curious about how he looked and what he did with his life. She was not looking for another father, having established a loving and open relationship with her social father. What she wanted was information to satisfy her own curiosity. The concerns expressed by AID child, now adult, Suzanne Rubin have been widely discussed. See for example, E Learner “Social Issues Common to Adoption and the New Reproductive Technologies” Australian Journal of Early Childhood Vol 11 (4) November 1986 at 40.
32. Previous sections of this paper have dealt with the issue of birth certificates and what information they should contain. In the course of our discussions with the Registry of Births Deaths and Marriages it has become obvious that birth certificates only offer a record of the legal parentage of an individual and do not represent an accurate biological record of that person’s genetic background or birth. For many people, this is of no real concern because their legal parents are, in fact, their biological parents. However, for growing numbers of children, this is no longer the case.
33. A child’s need for information to alleviate possible genetic bewilderment can be kept entirely separate from parental responsibility attaching to the donor. Arguments against allowing children to have information about the donor have focussed on protecting the donor’s privacy and protecting (usually) him (although it is equally relevant now to say her) from any responsibility in relation to the child. Recent Australian research has indicated that donors, recipients and children born with the aid of donated gametes have a remarkably positive attitude to each other’s needs and the provision of information in order to meet these needs. See S Midford and others, The Donation and use of Human Gametes: Psychological Implications for Donors, Recipients and Offspring Paper presented at the Fertility Society Conference, Sydney 2-5 November 1993.
34. See for example R Rowland “Attitudes and Opinions of Donors on an Artificial Insemination by Donor (AID) Program” Clinical Reproduction and Fertility December 1983, at 249-59 and K Daniels “The Psychosocial needs of Semen Donors” in K Wijma and B Von Schoultz (Eds) Reproductive Life: Advances in Research in Psychosomatic Obstetrics and Gynaecology (Carnforth, Parthenon 1992).
35. K Daniels, at 569.
36. Caroline and Patrice Lorbach, Submission (16 August, 1993) at 2.
37. There are several different aspects of technology involved in embryo donation. One of these is embryo donation by uterine flushing. This is a reproductive intervention involving natural ovulation, insemination with donor semen, and natural in vivo fertilisation. During the time before the fertilised ovum (the blastocyst) attaches itself to the wall of the uterus, the uterus is flushed out and the blastocyst is transferred to a recipient’s uterus, where implantation occurs and the foetus develops. It is now possible to freeze embryos for certain periods. This technique was developed to minimise the number of surgical interventions so that more than the required number of ova could be obtained and fertilised, the extra embryos then stored until required. A couple may end up with embryos in frozen storage that are in excess of that couple’s reproductive requirements. Some couple decide to donate their excess embryos rather than pay to leave them in storage or destroy them.
38. D M Saunders and P Lancaster Frozen Embryos: another population explosion? The Medical Journal of Australia Vol 157 August 3, 1992 at 148.
39. Sections 5 and 6.
40. This debate is argued in terms of the “moral status” of the embryo.
41. Consanguinity means a blood relationship and therefore kinship due to a common ancestry.
42. D M Saunders and P Lancaster, at 148.
