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Where am I now? Lawlink > Law Reform Commission > Publications > 5. Enforcement of Surrogate Motherhood Arrangements
Research Report 2 (1987) - Surrogate Motherhood: Australian Public Opinion
5. Enforcement of Surrogate Motherhood Arrangements
I. OVERALL RESPONSE
5.1 Arguably the most controversial aspect of surrogate motherhood arrangements is the question whether the agreement should be enforced if the surrogate mother refuses to surrender the child to the commissioning parents. The extensive public debate in Australia following the Baby M decision in the United States in April 1987, and the English High Court decision in March 1987 granting an adoption order to a commissioning couple with the surrogate mother's consent, is evidence of a wide divergence of opinion within the community.
5.2 In the Commission's survey, respondents were asked who should have first claim to the child if a surrogate mother, after agreeing to give up the child at birth, changes her mind The choices presented in the and wants to keep the child. survey were:
- the surrogate mother;
- the married couple;
- or a court should decide.
Responses were also recorded for persons who believed that the answer would depend on the circumstances, and for those who could not provide an answer. The results are set out in Table 5.1, and in Figure 4.
5.3 Approximately one-third (34%) considered that the married couple should have first claim, over one-quarter (26%) favoured the surrogate mother, and another one-quarter said that a court should decide. More than one-tenth (11%) did not provide an opinion, and 4% considered that it depended on the circumstances. Men and women held similar opinions on who should have first claim to the child.
Table 5.1
First Claim to the Child Overall and by Sex
| | Total | Males | Females |
| | % |
| Surrogate mother | 26.2 | 27.1 | 25.3 |
| Married couple | 33.9 | 33.4 | 34.3 |
| Court to decide | 25.1 | 24.7 | 25.5 |
| Depends | 3.7 | 3.4 | 3.9 |
| Can’t say | 11.2 | 11.4 | 11.0 |
| Number of respondents | 2476 | 1158 | 1318 |
5.4 In a poll conducted in July 1982 a similar question was asked of the two-thirds of respondents who said they had heard of surrogacy.1 They were asked to choose between the surrogate mother and the married couple; the option of having a court decide the matter was not included. Forty per cent chose the surrogate mother, 35% the couple, 13% needed to know more and 12% had no opinion.
5.5 Since the earlier survey was undertaken, there has apparently been a shift in public opinion towards favouring the married couple, as against the surrogate mother. However there is evidence of equivocation in the community as there is not a clear majority in favour of either the surrogate mother or the married couple. Further, 25% would prefer that the decision be left to a court.
5.6 The pattern observed in New South Wales in the present survey is similar to that for Australia generally. There is some slight difference between the views of those New South Wales residents living in Sydney and those living outside Sydney. A slightly higher proportion of those outside Sydney favoured the court (29%:26%) and fewer favoured the married couple (31%:34%). About one-quarter in both areas still considered the surrogate mother should have first claim.
II. AGE AND FAMILY STATUS
5.7 The proportion who considered that a court should decide declined with age from about one-third of those under 25 to about one-fifth of those aged 50 or over. The proportion who considered that the couple should have first claim increased with age amongst women (from 30% to 39%) but remained steady (at about one-third) amongst men. Further details appear in Table 5.2.
Table 5.2
First Claim to the Child by Age
| | 14 - 24 | 25 - 34 | 35 - 49 | 50+ |
| | % |
| Surrogate mother | 22.1 | 29.2 | 29.1 | 25.0 |
| Married couple | 32.6 | 31.7 | 34.7 | 35.7 |
| Court to decide | 32.5 | 27.8 | 22.9 | 19.2 |
| Depends | 2.9 | 2.8 | 3.1 | 5.3 |
| Can’t say | 10.0 | 8.4 | 10.3 | 14.8 |
| Number of respondents | 478 | 577 | 659 | 762 |
5.8 An analysis by age and family status showed some informative patterns. A greater proportion of married people (of whatever age) who already had children considered that the surrogate mother should have the first claim. On the other hand, only 19% of married people under 35 who had no children agreed with this. A greater proportion (42%) of married people under 35 with no children considered that the married couple should have first claim; this was particularly so for men in this category (48%). Some 40% of married women aged 35 or over with no children also agreed that the married couple should have first claim. Further details appear in Table 5.3.
Table 5.3
First Claim to the Child by Age and Family Status
| | Single
14 - 34 | Married
14 - 34
No Child | Married
14 - 34
Child | Married
35+
Child | Married
35+
No Child | Single
35+ |
| | % |
| Surrogate mother | 23.6 | 18.8 | 31.3 | 29.6 | 25.5 | 25.3 |
| Married couple | 31.2 | 41.7 | 30.0 | 30.8 | 36.7 | 38.6 |
| Court to decide | 31.7 | 27.7 | 29.1 | 24.1 | 19.8 | 18.4 |
| Depends | 2.9 | 2.9 | 2.7 | 2.9 | 5.5 | 4.0 |
| Can’t say | 10.7 | 8.9 | 6.9 | 12.6 | 12.5 | 13.7 |
| Number of respondents | 521 | 141 | 393 | 467 | 622 | 332 |
III. ATTITUDE TO SURROGATE MOTHERHOOD ITSELF
5.9 The responses to this question showed an interesting relationship with overall opinion of surrogate motherhood for married couples. A greater proportion of those who approved of surrogate motherhood (47%) and those who did not object to it (41%) considered that the married couple should have first claim to the child. This response should be compared with the overall result of 34% favouring the married couple. Of those who objected to surrogate motherhood, a higher proportion (35%) than overall (26%) considered the surrogate mother should have first claim. More details appear in Table 5.4.
Table 5.4
First Claim to the Child by Opinion of Surrogate Motherhood
| | Approve
of | Do not object | Object to | Need to know more | No opinion |
| | % |
| Surrogate mother | 22.9 | 21.6 | 35.2 | 24.2 | 7.1 |
| Married couple | 47.4 | 41.1 | 24.3 | 27.0 | 13.4 |
| Court to decide | 21.4 | 28.7 | 22.6 | 29.3 | 10.8 |
| Depends | 3.4 | 2.7 | 3.8 | 5.6 | 6.2 |
| Can’t say | 4.8 | 5.9 | 14.2 | 13.9 | 62.5 |
| Number of respondents | 390 | 870 | 826 | 320 | 70 |
IV. PERSONAL EXPERIENCE OF FERTILITY PROBLEMS
5.10 A higher proportion of those people who had someone in the family with a fertility problem (41%), or who were one of a couple with a fertility problem (38%), considered that the married couple should have first claim. As previously mentioned, 34% overall favoured the couple in answering this question. Further information appears in Table 5.5.
Table 5.5
First Claim to the Child by Fertility Problems
| | Fertility problem experienced by |
| | Self/
partner | Someone in family | A
friend | Don’t know anyone |
| | % |
| Surrogate mother | 28.1 | 25.9 | 29.4 | 26.0 |
| Married couple | 37.8 | 40.7 | 33.9 | 34.2 |
| Court to decide | 26.8 | 23.3 | 23.3 | 27.5 |
| Depends | 2.3 | 4.3 | 4.9 | 3.2 |
| Can’t say | 4.9 | 5.7 | 8.5 | 9.2 |
| Number of respondents | 142 | 165 | 528 | 1276 |
Footnote
1. Margaret Brumby “Australian Community attitudes to in vitro fertilization” (1983) 2 Medical Journal of Australia 650 at 651.
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