Friday, 24 October 2008
Saturday, 11 October 2008
I recall many years ago advising a woman who had acted as a surrogate. I was shocked. I looked at her and stammered something like: "But, but that's illegal!" ; to which she replied along the lines of "so - I wanted to help these people, and now I have decided to keep the baby".
As noted, Queensland is the only Australian jurisdiction where altruistic
surrogacy is a criminal offence with the maximum penalty $7,500 or three years
jail. Under the Queensland Criminal Code, surrogacy matters are classified as
simple offences, which mean they are dealt with by the Magistrates Court.
A review of five reported prosecutions indicates none of the individuals
charged under the Surrogate Parenthood Act 1988 have received severe penalties.
In most cases, the charges were dismissed and no conviction was recorded. One
woman received a good behaviour bond for her involvement in arranging a
surrogacy. A case heard in 1998 by the Family Court in Brisbane dealt with a
custody dispute involving a child born through a surrogacy arrangement. In this
case, no charges were laid under the Surrogate Parenthood Act 1988.
Other Australian jurisdictions
Whilst the laws in all Australian jurisdictions
prohibit commercial surrogacy, altruistic surrogacy is not considered an offence
in any other Australian jurisdictions apart from Queensland. However, only NSW
and the ACT currently have altruistic surrogacy occurring through fertility
clinics. In Victoria, South Australia and Western Australia, ART legislation
requires that the birth mother be infertile to access ART. In Tasmania, it is
illegal for professionals to assist in an altruistic surrogacy arrangement. This
means that, whilst legally permissible, in these states, surrogacy can only be
pursued by travelling interstate or overseas to access fertility clinics or by
undertaking traditional surrogacy without medical assistance. In the latter
case, the birth mother contributes her egg and she conceives by natural means or
by self insemination. ...
Comprehensive surrogacy legislation has now been presented and debated in
Western Australia, South Australia and Victoria. The proposed reforms seek to
address the issue of access to ART for purposes of altruistic surrogacy as a way
of addressing risks to the child and mitigating potential harm including health
risks to the parties. They also seek to provide legal certainty for the child as
well as the intending parents and birth parents.
The ACT is currently the Australian jurisdiction with the most
comprehensive legislative framework for the regulation of altruistic surrogacy.
The Parentage Act 2004 (ACT) provides for what it terms “substitute parent
agreements”. Apart from prohibiting commercial surrogacy, the Act prohibits
advertising and brokerage in altruistic surrogacy. It has a specific provision
to transfer legal parentage for altruistic surrogacy provided certain conditions
are met including a requirement that the parties have used ART.
The ACT legislation reflects a philosophy of harm minimisation and
equity in legal protection for families created through surrogacy. Regulation of
ART in the ACT is currently based on industry standards known as the RTAC code
of practice and National Health and Medical Research Council (NHMRC)
In NSW, the Assisted Reproductive Technology Act 2007 governs
altruistic surrogacy in a limited way by ensuring that surrogacy arrangements
are unenforceable. NSW also relies on the RTAC code of practice and NHMRC
guidelines for the regulation of surrogacy arrangements. Sydney IVF has provided
altruistic surrogacy services over the last decade under this regulatory
arrangement. Unlike the ACT, there is no specific provision in NSW for the
transfer of legal parentage for altruistic surrogacy. This is one of the matters
under consideration in the NSW Legislative Council’s inquiry.
Altruistic surrogacy is permitted in countries such as New Zealand,
Canada, the United Kingdom (UK), Netherlands and Belgium and parts of the United
States (US). It is not permitted in some European countries such as Germany and
France, although it is currently a matter undergoing review in the French
Friday, 10 October 2008
During the course of their relationship, Ms Maniaci had adopted two children. Ms Kulstad wanted to be involved in their care and to see them. Ms Maniaci sought that she not do so, asserting that as she was the only legal parent that Ms Kulstad had no right to be involved.
It appeared that the evidence was that despite Ms Maniaci's efforts post-separation, the children were bonded well to Ms Kulstad. Ms Kulstad had not been able to adopt the children because Montana law prohibited same sex adoptions.
The court held that Ms Kulstad could continue to have contact with the children as she had performed the role of a de facto parent, and that she would be jointly responsible for parenting decisions for the children.
For more about the case, click here.
There have been a number of factors in my view for the push to changes in surrogacy laws:
- for some reason there have been widely divergent rules in each State. Both NSW and the ACT permit surrogacy, but the other extreme has been Queensland, where under the Surrogate Parenthood Act 1988 contracts for surrogacy, even altruistic surrogacy are banned and any Queensland resident who enters into them- wherever it might be in the world- commits an offence in Queensland.
- the gay and lesbian baby boom is a fact of life. Gay and lesbian couples are seeking to have children, and often this requires help through an IVF clinic and surrogacy.
- the former Attorney-General Phillip Ruddock called on the States to have uniform laws
- Communications Minster Senator Stephen Conroy had to leave Victoria, where surrogacy was banned, and travel to NSW to have their baby through a surrogacy arrangement.
There have been other recent developments.
- I posted about how Victoria will now allow surrogacy, if a Bill before its Parliament gets up.
- Despite the change of government, incoming Premier in WA, Colin Barnett, has indicated that he sees surrogacy laws as a priority!
- Now Robert McClelland has taken onboard the views of the all party Senate committee looking at the de facto property changes, and has circulated a draft bill to alter the Family Law Act to give recognition to children from same-sex relationships and those from surrogacy - under that Act. I will talk about that change in more detail in the next couple of days.
But I digress. The current news is that Queensland, my home State, has got the report from the Parliamentary Inquiry which has unanimously recommended junking the ban on altruistic surrogacy.
This is what the Committee had to say in its report:
The committee is agreed that the Queensland Government’s role should be
develop a legislative and regulatory framework which balances the
protection of vulnerable people from harm
with the promotion of the liberty
of consenting adults. The committee acknowledges its deliberations on
important matters have been aided by the advice received from a number
of people with expertise in ethics
The committee is aware
that not all Queenslanders may choose altruistic surrogacy for themselves
approve of it for others. However, for some people in Queensland society,
altruistic surrogacy provides the
only realistic opportunity to create a
family. Over the last decade, on average, only eighteen children born
Queensland have been available annually for adoption. As trends in
adoption, deferred family formation and
infertility appear persistent, it
seems sensible for the Government to create an environment that maximises
possibility for success and happiness for families created through altruistic
The investigation was enriched by the stories of many individuals
whose life choices in Queensland have
been currently limited by the Surrogate
Parenthood Act 1988. The committee would particularly like to
courage and generosity of all those who shared their very personal stories
preparing submissions or appearing as witnesses. These
testimonies enhanced our understanding of the
issues. They brought an
intensely human face to the investigation and highlighted the diversity of
circumstances which can lead couples to contemplate or embark upon
The unanimous decision of the committee to support the
decriminalisation of altruistic surrogacy in
Queensland should not be
interpreted as an encouragement of altruistic surrogacy. The
recognises the significant risks associated with the practice.
Again, the committee is appreciative of the
contribution to its investigation
of both those opposing surrogacy and those supporting decriminalisation
highlighting in particular the risks to potential and existing children,
the birth mother and intending parents.
These concerns have not gone
unheeded. Readers will note that the committee proposes advertising
brokerage should not be permitted and all surrogacy arrangements should
The committee’s focus on informed consent through the
careful preparation of the parties and the prevention
relinquishment aims to address identified risks whilst respecting the liberty of
adults. In developing its proposed regulatory approach, the
committee has benefited from the work of
previous inquiries in Victoria,
South Australia, Western Australia and Tasmania. We have also learnt
from the policy approach outlined in the Australian Capital Territory
(ACT) Parentage Act 2004 and the
procedures developed by the two fertility
clinics, Canberra Fertility Centre and Sydney IVF, which have
surrogacy over the last decade in Australia. The development of the committee’s
approach has also been enhanced by the information, advice and
insights provided by a range of medical
specialists, infertility counsellors,
legal experts, researchers and policy officers in Queensland and
The committee has concluded that whilst prohibition may have
dissuaded some, it has not prevented altruistic
surrogacy occurring in
Queensland. The committee is again grateful to those who shared their stories
about the impact of the lack of legal protection for children born of
altruistic surrogacy in the state. The legal
uncertainty experienced by
Torres Strait Islander traditional ‘adoptees’ in relation to inheritance
illustrates the difficulties for altruistic surrogacy arrangements in
the absence of further regulatory reform.
The committee believes a
legislative and regulatory framework for altruistic surrogacy should also be
by a commitment of the Government to parity in its policy approach.
This is expressed in the committee’s
proposed policy principle:
child enjoys the same status and legal protection irrespective of the
circumstance of their birth
or the status of their parents.
To promote the
best interests of the child, the committee wants to ensure that children born of
surrogacy are not stigmatised by the manner of their conception
and not disadvantaged by the lack of legal
recognition of their intending
parents, for example, in terms of child support or inheritance. The
proposal for a specific mechanism to enable the transfer of legal
parentage is an expression of this principle.
The committee’s approach to the
rights of the child for information on genetic parentage has been informed
the excellent work of the Victorian Infertility Treatment Authority: in
particular, the promotion of its
mandatory and voluntary donor registers; its
research on barriers to ‘telling’; and its service approach to
individuals and families in relation to ‘telling’ and information exchange.
There appear many lessons
for altruistic surrogacy to be drawn from the
experience of donor conception and adoption in relation to
information and ‘telling’. We thank those organisations supporting people
impacted by adoption and
donor conception for their valuable insights and
The Committee made 26 recommendations:
RECOMMENDATION 1: RESPONSIBLE MINISTERS TO REPORT ANNUALLY TO PARLIAMENT
The committee recommends that the responsible Minister/s report annually to parliament on the
implementation by their departments of the adopted recommendations in this report.
RECOMMENDATION 2: SIGNIFICANCE OF LANGUAGE
The committee recommends that the Queensland Government, when formulating legislation,
guidelines and policy, uses the terms:
• ‘Birth mother’ to describe the surrogate mother;
• ‘Intending parents’ rather than ‘commissioning parents’ to avoid the use of perceived
dehumanised or commercialised language; and
• Altruistic surrogacy ‘arrangement’ rather than ‘agreement’ to emphasise the altruistic nature of the endeavour.
RECOMMENDATION 3: DECRIMINALISATION SUPPORTED WITH APPROPRIATE LEGISLATION AND REGULATION
The committee recommends that the Queensland Government decriminalises altruistic surrogacy supported with an appropriate legislative and regulatory framework as described in later recommendations.
RECOMMENDATION 4: DEFINING GOVERNMENT’S ROLE
The committee recommends that with the decriminalisation of altruistic surrogacy, the role of the Queensland Government is to develop and maintain an adequate legislative and regulatory framework which:
• Balances the prevention of harm and the protection of personal liberty in the creation of families through altruistic surrogacy; and
• Seeks parity in policy development for families created through altruistic surrogacy with other
families created through assisted reproductive technology (ART) or natural conception.
In the current Queensland regulatory context, the committee believes the Government’s key
responsibilities should be as follows:
• Policy direction by defining altruistic surrogacy, guiding principles and outcomes for regulation and
operational policy for acceptable altruistic surrogacy arrangements;
• Implementation of specific legislative or regulatory reform as required with a current focus on:
strengthening ART regulation and providing a specific mechanism to transfer legal parentage for
• Direct service provision in terms of collection, maintenance and provision of access to birth and
related information; and
• Ongoing monitoring and review of the implementation and effectiveness of legislation and
regulation including research on client outcomes.
RECOMMENDATION 5: DEFINING ALTRUISTIC SURROGACY
The committee recommends that the Queensland Government defines altruistic surrogacy in the Surrogate Parenthood Act 1988 as: a clear arrangement, whether formal or informal, agreed preconception between consenting adults for the birth mother to bear a child for the intending parent/s and to permanently transfer the responsibility for the child’s care and upbringing to the intending parent/s after the child’s birth.
RECOMMENDATION 6: FURTHER EXAMINATION OF TRADITIONAL TORRES STRAIT ISLANDER ‘ADOPTIONS’
The committee recommends that the Queensland Government considers options for the recognition of traditional Torres Strait Islander ‘adoptions’ (also refer to Recommendation 24).
RECOMMENDATION 7: REASONABLE EXPENSES
The committee recommends that the Queensland Government ensures the appropriate legislation and/or relevant regulation:
• Permits reasonable expenses for altruistic surrogacy as long as there is no material gain for the
• Defines categories of permitted expenses as follows: medical, legal, counselling,
travel/accommodation, childcare and insurance costs and lost earnings which are directly
attributable to the altruistic surrogacy arrangement and not covered by existing entitlements or
benefits. Paid maternity leave will be limited to a maximum of two months associated with the birth and additional leave during pregnancy where medically indicated; and
• Clarifies that payment of reasonable expenses is not enforceable as part of altruistic surrogacy
RECOMMENDATION 8: PROHIBITION OF ADVERTISING AND BROKERAGE
The committee recommends that the Queensland Government prohibits advertising and brokerage for altruistic surrogacy.
RECOMMENDATION 9: ARTICULATING POLICY PRINCIPLES
The committee recommends that the Queensland Government articulates five key policy principles supported by specific outcome statements in legislation to guide the regulation of altruistic surrogacy in Queensland. The best interests of the child are articulated under the committee’s first three proposed
principles. The five principles are as follows:
• Every child is nurtured, loved and supported;
• Every child has access to his/her identity;
• Every child enjoys the same status and legal protection irrespective of the circumstances of
his/her birth or the status of their parents;
• The long-term health and wellbeing of the parties to a surrogacy arrangement and their families is
• The autonomy of consenting adults in their private lives is respected.
RECOMMENDATION 10: GENETIC CONNECTION WITH INTENDING PARENTS AND BIRTH MOTHER
The committee concludes that it is desirable to pursue gestational surrogacy and it is desirable for at least one intending parent to contribute their gametes where possible. However, given the difficulties of accounting for people’s differing capacities and beliefs in relation to genetic connection, the committee recommends that the Queensland Government:
• Avoids a prescriptive approach on genetic connection; and
• Permits the use of the birth mother’s egg, donor gametes and donated embryos when accessing
ART if endorsed by the Surrogacy Review Panel on expert advice that (a) surrogacy is needed
and (b) the parties are prepared for possible risks. (See Recommendation 12 for more detail in
relation to the panel.)
RECOMMENDATION 11: GENETIC RELATIONSHIP AND TRANSFER OF LEGAL PARENTAGE
The committee recommends that the Queensland Government maintains the status quo where the birth mother is automatically recognised as the legal parent irrespective of her or the intending parents’ genetic relationship with the child.
RECOMMENDATION 12: ENHANCING EXISTING ART ASSESSMENT AND SUPPORT PROCESSES
The committee recommends to the Minister for Health that Queensland Health enhance existing
standards for assessment and support for altruistic surrogacy in ART services with provision for:
• Psychosocial assessment which is independent from psychosocial support;
• Further specification of the content and amount of independent psychosocial assessment and
Investigation into Altruistic Surrogacy iii
• Provision of opportunities for counselling during pregnancy and after birth for the birth mother, her
partner and the intending parents;
• Independent medical assessments for the birth mother and intending parents to assess health
risks, need for surrogacy and any issues impacting on their capacity for long-term care of the
• Specialist, independent legal advice by a qualified lawyer provided separately for the birth parents
and intending parents;
• A legislatively based Surrogacy Review Panel appointed by Queensland Health including
members with relevant expertise in medicine, family law, ethics, psychosocial health and child
development and a community representative to approve all applications for altruistic surrogacy
and to inform the development and evaluation of ART standards in relation to altruistic surrogacy;
• A three month cooling off period after approval by the Surrogacy Review Panel before proceeding with treatment.
The committee also recommends that the panel be sufficiently resourced to operate in a timely way and provide easy access to applicants across Queensland.
RECOMMENDATION 13: SUPPORT FOR THE IMPLEMENTATION OF NEW STANDARDS
The committee recommends to the Minister for Health that Queensland Health support the
implementation of enhanced standards for altruistic surrogacy in the ART services by ensuring the agency:
• Has relevant policy research expertise in relation to altruistic surrogacy; and
• Supports relevant training and professional development opportunities for infertility counsellors,
nurses and clinicians, members of the Surrogacy Review Panel and family law specialists in
collaboration with the ANZICA, fertility clinics, the Fertility Society of Australia and other experts.
RECOMMENDATION 14: MONITORING, EVALUATION AND RESEARCH
The committee recommends that the Queensland Government:
• Develops an annual data collection system for ART services to monitor demand for and the extent
of service provision for altruistic surrogacy, the nature of surrogacy arrangements and service
• Explores possibilities for ongoing research on outcomes for children and parties and their ongoing
support needs in consultation with other jurisdictions, industry and professional bodies and
existing researchers; and
• Evaluates the effectiveness of ART standards for altruistic surrogacy and the quality of client
outcomes for people pursuing altruistic surrogacy through ART in consultation with stakeholders.
This evaluation should occur two years after the implementation of the new standards.
RECOMMENDATION 15: PARLIAMENTARY REVIEW
The committee recommends that the Queensland Parliament ensures that, following its release, the report from the evaluation outlined in recommendation 14 is reviewed by a parliamentary committee.
RECOMMENDATION 16: CRITERIA FOR INTENDING PARENTS AND BIRTH MOTHERS
The committee recommends to the Minister for Health that additional standards be developed under the Private Health Facilities Act 1999 to include criteria for intending parents and birth mothers seeking assistance from ART. The committee proposes:
• The intending parents and the birth mother and her partner have the capacity to enter an
arrangement; have participated in independent psychosocial and medical assessment; and have
obtained separate legal advice from a qualified lawyer;
• Intending parents demonstrate a need for surrogacy (due to medical infertility or an inability to
carry a child or identified health risk) and at least one intending parent is an Australian resident;
• The proposed pregnancy poses no significant health risk to the birth mother and she has
experienced a previous successful pregnancy.
RECOMMENDATION 17: RIGHTS OF BIRTH MOTHERS TO MANAGE THEIR PREGNANCY AND BIRTH
The committee recommends that the Queensland Government confirms that birth mothers engaged in an altruistic surrogacy arrangement have the same rights to manage their pregnancy and birth as other pregnant women.
RECOMMENDATION 18: UNENFORCEABILITY OF SURROGACY ARRANGEMENTS
The committee recommends that the Queensland Government ensures altruistic surrogacy
arrangements remain unenforceable under State law.
RECOMMENDATION 19: MECHANISM FOR TRANSFER OF LEGAL PARENTAGE SPECIFIC TO ALTRUISTIC SURROGACY
The committee recommends to the Queensland Government that it:
• Provides for the transfer of legal parentage for altruistic surrogacy under the Surrogate
Parenthood Act 1988, the Status of Children Act 1978 or other suitable Act with the following
− The arrangement falls within the proposed legislative definition of acceptable altruistic
surrogacy arrangements (i.e. it is non-commercial, made pre-conception and parties have
reached legal adulthood);
− Intending parents demonstrate a need for surrogacy based on advice from the Surrogacy
Review Panel or a medical specialist or, in the case of traditional Torres Strait Islander
‘adoptions’, customary practice is verified using a similar process to that used in the Family
− The parties meet informed consent requirements including:
• The birth parent/s consent to the transfer of legal parentage;
• The child is resident with the intending parents;
• Birth parents and intending parents have received separate legal advice from a qualified
• All parties have undertaken post-birth counselling as evidenced by a report from an
ANZICA counsellor or a suitably qualified psychologist, social worker or psychiatrist
focusing on quality of informed consent, child’s right to information and ongoing
communication between the parties;
− At least one of the intending parents is an Australian resident;
− The approval of transfer is made no sooner than four weeks after birth and an application for
transfer is made no later than six months after birth; and
− The transfer is considered in the best interests of the child;
• Provides for the transfer of legal parentage for any existing altruistic surrogacy cases which fall
outside the six month criteria for a two year period following the decriminalisation of altruistic
surrogacy providing they meet all of the other conditions detailed above; and
• Ensures that applications for the transfer of legal parentage come under the jurisdiction of the
RECOMMENDATION 20: LEGAL PROTECTION FOR CHILDREN BORN OF ALTRUISTIC
SURROGACY ARRANGEMENTS WITH SAME-SEX PARENTS
The committee notes the broader issue of recognition of same-sex parents and recommends to the Queensland Government that it conduct a review of the legal status for children being cared for by same-sex parents with particular to the operation of the Status of Children Act 1978 .
RECOMMENDATION 21: BIRTH CERTIFICATES The committee recommends that the Queensland Government:
• Provides for the re-registration of births after approval of the transfer of legal parentage in altruistic
surrogacy cases with the issue of a new birth certificate recording the names of intending parents
as the child’s legal parents;
• Ensures that when children born of altruistic surrogacy with a re-registered birth certificate turn 18
years they can access their original birth certificates; and
Investigation into Altruistic Surrogacy v
• Engages stakeholders including children born of altruistic surrogacy and/or ART and adoptees in
considering other options to support children’s identity rights including:
− The production of a public birth certificate outlining legal parentage and a private birth
certificate detailing genetic relationships and type of surrogacy (i.e. gestational or traditional);
− The use of annotations on birth certificates to alert people to the existence of other
information held elsewhere.
RECOMMENDATION 22: REGISTER OF GENETIC INFORMATION
The committee recommends that the Queensland Government:
• Develops a central register to protect information on a child’s genetic parentage and
circumstances of birth in relation to altruistic surrogacy, having regard for the possible benefits of
such a service for other children born of donor gametes;
• Considers the relative merits of the placement of the register, having regard to the possible
synergies with ART regulation, within Queensland Health or with birth registration within the
Register of Births, Deaths and Marriages; and
• Supports the development of a national best practice approach to the operation of registers and
RECOMMENDATION 23: ONGOING SUPPORT TO TELL FOR INTENDING PARENTS
The committee recommends that the Queensland Government develops a strategy to:
• Support parents of children born of altruistic surrogacy or gamete donation of all ages to ‘tell’ them about their genetic parentage and circumstances of birth;
• Promote the role of the register as proposed in Recommendation 22 and provide easy access to a child’s information; and
• Facilitate the exchange of information between parties.
RECOMMENDATION 24: ADVOCATING FOR MEDICARE FUNDING
The committee recommends that the Queensland Government advocates the Australian Government to provide Medicare funding for altruistic surrogacy.
RECOMMENDATION 25: DEVELOPING OPTIONS FOR RECOGNISING TRADITIONAL TORRES STRAIT ISLANDER ADOPTIONS’
The committee recommends that, in developing options for the recognition of traditional Torres Strait Islander ‘adoptions’, the Queensland Government:
• Considers options in consultation with the Torres Strait Islander community, having an
appreciation of parenting roles, extended family and child rearing practices in Torres Strait
• Considers options which protect the existing legal right of the birth mother/parents not to
relinquish the child and promote the rights of the child to information on his/her genetic parentage;
• Considers the relevance of the model proposed for transfer of legal parentage in altruistic
surrogacy in the wider community along with lessons from the operation of the Family Law Court Kupai Omasker parenting orders;
• Ensures that the model is accessible to Torres Strait Islanders throughout the State; and
• Develops a culturally appropriate community education program to support the implementation of
such a provision.
RECOMMENDATION 26: TELLING AND TRADITIONAL ADOPTION PRACTICE
The committee recommends that the Queensland Government provides an opportunity for further dialogue with the Torres Strait Islander community on the issues of telling and traditional ‘adoption’ practice and a child’s right to information. This dialogue should offer the opportunity to fully explain the evidence base for the Department of Child Safety’s current policy around telling. It should also encourage and support community based research and engagement initiatives which seek to foster discussion within the community and with the Government on the issue.
Wednesday, 1 October 2008
Some significant features:
- surrogate arrangements will now be able to occur in Victoria. They will not be limited to married couples. People seeking surrogate arrangements could be single (male or female), married or de facto, or same sex partners.
- commercial surrogacy in Victoria could occur. However, the surrogate mother can only receive her expenses reimbursed and cannot be allowed to profit. There would also be a ban on advertising for surrogates. In reality, these limitations should prevent commercial surrogacy.
- an egg or sperm from a dead person can be used to fertilise the dead person's partner (so is not limited to married couples, and might include lesbian but not gay couples) in limited cases.
- sets up the Victorian Assisted Reproductive Treatment Authority.
- changes presumptions about children for women who are single or have female partners- "the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy whether or not the man is known to the woman or her female partner" and the female partner is presumed to be a parent. However, if a donor egg was used, the donor is presumed not to be the mother of the child born as a result of the pregnancy. Therefore if the female partner were to be the donor, she would be a parent but not the mother.
The Bill is subject to a conscience vote, so it remains to be seen if it passes both Houses.