I. INTRODUCTION

A. The Reference

1.1 On 5 October 1983, the then Attorney-General , the late Honourable D P Landa LLB, MP referred to this Commission a number of matters that the Commission has collectively entitled Artificial Conception. The terms of reference are set out in the preliminary pages to this report. The reference arose out of previous work done by the New South Wales Advisory Committee on Human Artificial Insemination.¹ The Commission decided to divide its subject matter into three parts:

• human artificial insemination;
• in vitro fertilization; and
• surrogate motherhood.

1. Human Artificial Insemination

1.2 The project, human artificial insemination was completed, when the report Human Artificial Insemination² was presented to the then Attorney General, the Honourable T W Sheahan BA, LLB, MP in June 1986. This was preceded by a substantial discussion paper published in December 1984.³ The report, accompanied by draft legislation, was published by the Commission with the consent of the Attorney General in July 1986, and was tabled by him in Parliament on 28 May 1987. The legislation suggested by the report has yet to be enacted.

2. In Vitro Fertilization

1.3 In July 1987 the Commission published a lengthy discussion paper on the issues surrounding in vitro fertilization.⁴ It provided background information on every aspect of the procedure, outlining the legislative responses both within Australia and overseas, and reviewed the moral and social issues raised by this new procedure. The report In Vitro Fertilization⁵ was presented to the Attorney General in July 1988, and was tabled in Parliament on 2 August 1988.

3. Surrogate Motherhood

1.4 Surrogate motherhood is the third and final project of the Artificial Conception reference. Work has been in progress on the matter since 1986. In May 1987 the Commission published a research report that canvassed Australian public opinion on surrogacy.⁶ This was followed in September 1988 by a discussion paper, Surrogate Motherhood.⁷ The discussion paper outlined the background to surrogacy arrangements, their current legal status and the legislative responses made in jurisdictions outside New South Wales. It concluded by setting out four different “models for reform”, and called for comments and submissions from the public.

B. Principles of Reference

1.5 The principles on which the Commission has considered the reference were first outlined in the report on Human Artificial Insemination. These . principles continue to guide our work. 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 shall 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.⁸

In the surrogate motherhood project the Commission has placed particular emphasis on the second of these principles.

C. Membership of the Commission

1.6 The members of the New South Wales Law Reform Commission who have produced this report are:

• Ms Helen Gamble, Chairman of the Commission and Commissioner-in-charge of the Artificial Conception reference.
• Dr Susan Fleming, Obstetrician and Gynaecologist.
• Eva Learner, Social Worker.
• Mr Keith Mason QC, Solicitor General for New South Wales.

Mr Russell Scott was Commissioner-in-charge of the reference until he resigned from the Commission on 17 June 1988 in order to take up a consultancy in the private legal profession. He did not participate in the writing of this report.

II. PUBLIC CONSULTATION

1.7 Copies of the Surrogate Motherhood discussion paper were distributed in August-September 1988. The paper called for comment on the issues and incidence of surrogacy in New South Wales. A public Hearing was conducted by the Commission at the Assembly Hall, University of Sydney Law School on 14 October 1988. Fifteen oral submissions were received, and a full transcript of the proceedings was made.⁹ In addition to the submissions made at the hearing, the Commission also received more than 30 oral and written submissions in response to the discussion paper. A list of submissions can be found in Appendix A.

1.8 As the Commission undertook to report to the Attorney General by December 1988, the period for public consultation has been considerably shorter than was allowed for previous projects. Nevertheless the Commission has carefully considered the views expressed both at the hearing and in the other written and oral submissions and is grateful for the efforts of and interest shown by those individuals and groups who made submissions.

III. THE PRACTICE OF SURROGACY

1.9 In the discussion paper on Surrogate Motherhood, the Commission called for information from members of the public as to the practice and incidence of surrogate motherhood, to enable us to establish a fuller picture of the way in which surrogacy is being used in this State .While we received several submissions in response to this request,¹⁰ it must be stressed that we have been unable to obtain a complete picture of the practice in New South Wales.

1.10 Few detailed studies have been conducted to give an adequate background to surrogacy, the terms and conditions of the agreements, and a description of the reasons why people become involved. No such study has been undertaken in Australia.¹¹ Such evidence as there is remains anecdotal and is generally confined to those few cases generating national attention. Most recent examples of this are the Kirkman-IVF surrogacy in Victoria¹² and the IVF surrogacy triplets in Western Australia.¹³ However, we believe we have enough evidence, from media reports and submissions made to us, to indicate that surrogacy has been practised regularly in this State in recent years. We believe that it will continue to be practised to some extent whatever measures are introduced into the law.

1.11 Much of the evidence about surrogacy which is readily available comes from the coverage of dramatic trials, like the Baby M case, or from widely publicised individual accounts. These accounts tend to give a distorted impression of the practice and make it difficult to assess the incidence and effects of surrogacy. The task of assessing the information is further complicated by the fact that for the most part, more publicity will be given to agreements which fail. The matter wiII have entered the public arena because the parties have turned to the courts for assistance in enforcing (or striking down) their agreement.

1.12 While the Commission’s request for information about surrogacy arrangements elicited some negative responses, it has also made available information from a number of women who have been involved in surrogacy arrangements which they considered were very successful.¹⁴ These arrangements were basically altruistic,¹⁵ is with varying levels of professional medical involvement and advice. What became clear from talking to these women was that the agreements shared many common features: all were essentially informal, altruistic arrangements with a substantial degree of openness about the procedure, with no attempt to maintain secrecy among family and friends. It also became clear that surrogacy is not a new process, nor is it necessarily associated with the new reproductive technologies. One caller gave evidence of surrogacy arrangements in one family that went back several generations.¹⁶ This is unusual but it is unlikely to be unique.

IV. DEFINITIONS

A. Surrogate Motherhood

1.13 In our terms of reference surrogate motherhood is defined as an arrangement under which a woman agrees to bear a child for another person or persons.¹⁷ The Commission has modified that definition and now defines surrogate motherhood as being an arrangement whereby a woman agrees to become pregnant and to bear a child for another person or persons, to whom she will transfer custody at or shortly after birth. As we noted in the discussion paper, there is an, ambiguity in referring to the birth mother as a surrogate, especially when she is genetically related to the child she carries.¹⁸ We have continued to use the term because we believe it has an established meaning in common parlance. In doing so we are conscious of claims that we may be biasing the debate by denying the birth mother her proper title.¹⁹ That is not our intention.

1.14 There are three important aspects of the concept surrogate motherhood as we have defined it:

• an essential feature of the practice is that the woman who is to carry the child initiates a pregnancy on behalf of those who commission the child. We therefore exclude the situation in which the woman is already pregnant at the time the agreement is made. This situation is dealt with satisfactorily under existing law. The woman who agrees to part with a child she is already carrying is in a different position from the woman who contracts to become pregnant, because she does not bring new life into existence for the purposes of the agreement.
• Another distinguishing feature of surrogate motherhood, as we have defined it, is that it involves an agreement to part with custody of the child at or shortly after the birth. In submissions made to the Commission it was pointed out that those cases of surrogacy said to have occurred in ancient times did not really involve surrogacy as we know it today. The essential difference was that in those cases the surrogate mother remained in the family with the child and took part in the child’s nurture.²⁰ We do not regard an arrangement as surrogacy unless a permanent transfer of custody is intended in which the birth mother is to relinquish the child to someone else.
• It is possible that the surrogate mother may enter into an arrangement with the genetic rather of the child whereby he is to have sole custody of the child at birth. The Commission does not believe this situation should be covered by tile definition of surrogacy, because under such an arrangement custody would be assigned to someone of who is entitled to it under s60B of the Family Law Act 1975 (Cth). When custody is to be assigned to the genetic father and his partner, however, there is a classic surrogacy situation created which should be included within our definition. The reason a distinction should be made between the two cases is that the introduction of a third party typically indicates a more remote relationship between father and birth mother and no intention for them to share in the child’s upbringing. When only two parties are involved it is more likely that their arrangement can be regulated adequately under the Family Law Act. For instance the transfer of custody could be effected under a child agreement registered pursuant to s66ZC of that Act. This would bring the case to the notice of the Family Court. A three party agreement is less obviously accommodated within existing law.

B. Child

1.15 In this report our references to a child or children are to those children who are recognized by the law as having been born or who are stillborn. In the course of our public consultation, some submissions raised the question of how “child” was to be defined in relation to surrogacy. It is not our intention to make recommendations about the care or disposal of the unborn foetus.²¹ Therefore we have adopted those definitions of child and stillborn child which are commonly used at common law and in the statute of this State to mean a baby fully and completely born with an independent existence from its mother.²²

1. See particularly NSW Advisory Committee on Human Artificial Insemination, Australian Attitudes to Human Artificial Insemination prepared by G Rawson (NSW Govt Printer 1984).

2. New South Wales Law Reform Commission Human Artificial Insemination (LRC 49, 1986).

3 New South Wales Law Reform Commission Human Artificial Insemination: Discussion Paper 1 (DP 11, 1984).

4. New South Wales Law Reform Commission In Vitro Fertilization: Discussion Paper 2 (DP I5, 1987). ‘

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

6. New South Wales Law Reform Commission Surrogate Motherhood: Australian Public Opinion (RR 2, 1987).

7. New South Wales Law Reform Commission Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988).

8. See Human Artificial Insemination (LRC 49, 1986) at para 3.4.

9. Transcript of Proceedings, New South Wales Law Reform Commission Public Hearing on Surrogate Motherhood (14 October 1988).

10. See Appendix A; particularly “Commissioning Parent” (No 1) (SB 4, 1988); “Surrogate Mother” (No 1) (SB 6, 1988); “Commissioning Parent” (No 2) (SB 10, 1988); “Surrogate Mother” (No 25 (SB 27, 1988).

11. Some studies have been carried out in the United States. See United State Office of Technical Assessment, Infertility: Medical and Social Choices (1988).

12. “Woman to bear her sister’s baby” Sydney Morning Herald 8 April 1988 at 1; “Surrogate Mum: this is the ultimate in sisterhood” Weekend Australian 9-10 April 1988 at 3', “My Sister’s Child” Sunday Telegraph 16 October 1 9 8 8 at 177-179; Maggie and Linda Kirkman, My Sister’s Child (Penguin Books, Ringwood, 1988).

13. “Triplets born to surrogate sister” Daily Telegraph 20 October 1988 at 7; “Surrogate Mother to be ‘special aunt ‘ “ Australian 20 October 1988 at 1; “A Perfect FamiIy” New Idea 3 December 1988 at 3-7.

14. See “Surrogate Mother” (No. 1) (SB 6, 1988); “Commissioning Parent” (No 2) (SB 10, 1988); “Surrogate Mother (No 2) (SB 27, 1988) and “Mary” (PH 9, 1988).

15. In one there was no payment , in another, it was a minimal amount.

16. Mr A.C. Houlsby (SB 9, 1988).

17. Surrogate Motherhood (DP 18, 1988) at 2.1.

18. Ibid.

19. In their submission B Guthrie and M Kingshott expressed the view that “such misuse of language is dangerous” because “by calling something exactly what it is not, [the Commission] attempts to make it acceptable” (SB 28). A submission from the Association of Relinquishing Mothers (SB 14) was also uncomfortable with the term, as was the submission of the NSW Infertility Social Workers Group (SB i5).

20. Social Issues Committee of the Anglican Church Diocese of Sydney (SB 18, 1988).

21. Oral submission from John Wade at Public Hearing in which he requested that the Commission define child so as to indicate whether a foetus or in vitro or stored embryo was included within its recommendations.

22. In Hutty [1953] VLR 338, 339, Barry J of the Supreme Court of Victoria said:

. . . Murder can only be committed on a person who is in being, and legally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.

The definition in Crimes Act 1900, s20 is:




Child murder - when child deemed born alive. On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world, whether it has had an independent circulation or not.

In the Registration of Births, Deaths and Marriages Act 1973, s4(1)-




“still-born child” means a child who -

(a) is of at least twenty weeks gestation, or at least 400 grams weight, at delivery; and

(b) has not breathed after delivery.