Sunday, 15 July 2012

Dont let the facts get in the way of a good story

My grandmother would admonish my grandfather for correcting details of her highly entertaining stories by saying: "Don't let the facts get in the way of a good story." This statement is a fair summary of the e petition brought by Ms Wendy Francis of Queensland's Australian Christian Lobby to support the proposed changes to Queensland's Surrogacy Act.

A reminder...

 The proposal by the Queensland government is to:


The ACL's e petition

I have previously blogged about the competing e petitions- the one by Wendy Francis, and the other by Paul Martin.

Paul Martin's e petition

This e petition, numbered 1919-12, states:

Queensland residents draws to the attention of the House the Newman Government's stated plan to amend the Surrogacy Act 2010, repealing provisions that enable same sex couples, de facto couples of less than two years and singles from entering into surrogacy arrangements in order to start a family.  Any such amendments would legislate for discrimination and inequality; it would further take our State backwards in relation to human rights.

Your petitioners, therefore, request the House to call upon the Premier and the Attorney-General to not proceed with any proposals to amend the Surrogacy Act 2010.

Wendy Francis' ACL's e petition

This e petition, numbered 1923-12, states:

 
Queensland residents draws to the attention of the House:

·         that the Surrogacy Act 2010 allows single people or same sex couples to obtain a child by altruistic surrogacy, thereby depriving the child of either a mother or a father;
·         that it is an offence against a child to wilfully deprive that child of the knowledge and care of their own parents, as stated in the International Convention on the Rights of the Child: “The child shall, wherever possible, grow up in the care and under the responsibility of their parents … a child of tender years shall not, save in exceptional circumstances, be separated from their mother”;
·         that society has caused grave suffering to children in the past by depriving them of their right to both a mother and a father: whether by preventing knowledge of their origins (as with children of anonymous sperm donors) or by compelling them to live without their mother (as with babies removed from unwed mothers) or by the practice of the Aboriginal “stolen generations”;
·         that the “equal right” of every child to enter the world with both a mother and father must take priority over the alleged “equal right” of single people or same sex couples to obtain a child by surrogacy.

Your petitioners, therefore, request the House to repeal all laws and amend any regulations that allow a single person or a same sex couple to obtain a child by surrogacy.

Myth 1: Surrogacy is akin to adoption

Quite simply. although surrogacy and adoption deal with children, they're different. Ms Francis' e petition argues that a child will lose out by not having both a mother and a father. It does this by saying that the child would be "deprived" of both a mother and a father. This argument is flawed because instead of being deprived, by being conceived the child will gain a parent or parents that it did not otherwise have.

Adoption after all is of a child who, often in trying circumstances is given up by his or her parents, and then put into the care of an intended parent or parents.

Myth 2: That there is a right for every child to enter the world with both a mother and a father

Who says? Where is this alleged "right"? It is not a requirement of our law now. It has been the law now for many years that single women and lesbians can access IVF clinics, without the need of a man as the father to be. If the clinics refuse treatment, they breach the Sex Discrimination Act, Federal legislation designed to implement the Convention on the Elimination of all forms of Discrimination Against Women. Women have "rights" under both the Sex Discrimination Act and under the Convention.

It is perfectly legal for a single woman or a lesbian couple to self-inseminate by using sperm from a donor, such as a friend. The proposed changes make no difference to that.

The International Convention on the Rights of the Child does not set out such a "right" to enter the world with a mother and a father, but says:

Article 2
 
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. 

Article 6
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.


Myth 3:   Quoting the International Convention on the Rights of the Child

It helps to get your facts right. Ms Francis purports to quote the International Convention on the Rights of the Child. The phrase quoted in the e petition purportedly from the Convention,“The child shall, wherever possible, grow up in the care and under the responsibility of their parents … a child of tender years shall not, save in exceptional circumstances, be separated from their mother” does not come from the Convention, but from the 1958 Universal Declaration of the Rights of the Child.  

In any case, reflecting the language of that era, the Declaration refers to "child" as "his" parents, and "his" mother, not "their". 


The phrase referred to, in which the tender years doctrine has been set out, has been overtaken by the Convention in which the "best interests of the child" is enshrined.This phrase in turn has been adopted in Australian legislation, such as the Family Law Act and the Child Protection Act. The Convention does NOT refer to the tender years doctrine, but says:


States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.


Myth 4: Quoting in context

Ms Francis does not mention other parts of that Declaration:

Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family....

 The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration....

 The child shall be protected from practices which may foster racial, religious and any other form of discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, and in full consciousness that his energy and talents should be devoted to the service of his fellow men. (emphasis added)

Myth 5: The International Convention on the Rights of the Child creates offences

This is what Ms Francis says:

That it is an offence against a child to wilfully deprive that child of the knowledge and care of their own parents, as stated in the International Convention on the Rights of the Child...
  
The Convention does not create offences. That is untrue. 

Article 5.1 of the Convention states:

 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.


Article 9.1 of the Convention talks about the removal of a child from parents, in circumstances that are completely divorced from surrogacy:


States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.(emphasis added)
The Surrogacy Act recognises the primacy of the birth mother as the mother of the child. A parentage order cannot be made in favour of an intended parent or parents without the consent of the birth mother and her partner. There is no removal against their will. This applies irrespective of whether the birth mother or her partner have any genetic relationship to the child.

Myth 6: The “equal right” of every child to enter the world with both a mother and father must take priority over the alleged “equal right” of single people or same sex couples to obtain a child by surrogacy.

As set out above, there is no "right" to enter the world with both a mother and a father. There is a "right" not to be discriminated against, either for the best interests of the child under the International Convention on the Rights of the Child, or other human rights treaties Australia has signed up to, and under the Sex Discrimination Act. As I have pointed out elsewhere, the proposed discrimination appears to be in breach of those Conventions, points raised as long ago as 2009 by the then President of the Queensland Law Society, and now LNP Member for Ipswich Ian Berry, and will likely fall foul of the Sex Discrimination Act. The President of the Queensland Law Society, Dr John de Groot, not a man given to hyperbole, talks of the proposals as a "miscarriage of justice"


Myth 7: The Surrogacy Act process will cause suffering to children by being closed and secretive


Sections 5 and 6 of the Surrogacy Act set out guiding principles which emphasise openness and honesty:
Section 5: The main objects of this Act are—
(a) to regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and
(b) in the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result—
(i) to establish procedures to ensure parties to the arrangement understand its nature and implications; and
(ii) to safeguard the child's wellbeing and best interests.
Section 6: (1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
(2) Subject to subsection (1), this Act is to be administered according to the following principles—
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that—
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child's birth parentage; and
(iii) promotes the development of the child's emotional, mental, physical and social wellbeing;
(b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of—
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become the child's parents as a result of a transfer of parentage;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.

Section 5 of Mr Springborg's Bill, the one that the Attorney said would be the model of the Government's changes, is almost identical to sections 5 and 6 of the Surrogacy Act:

(1) The main objects of this Act are—
(a) to regulate particular matters in relation to surrogacy
arrangements, including by prohibiting surrogacy
arrangements except in particular circumstances; and
(b) to provide for the court-sanctioned transfer of parentage
of a child born as a result of a surrogacy arrangement in
those particular circumstances; and
(c) in the context of a surrogacy arrangement that may
result in the court-sanctioned transfer of parentage of a
child born as a result—
(i) to establish procedures to ensure parties to the
arrangement understand its nature and
implications; and
(ii) to safeguard the child’s wellbeing and best
interests.
(2) This Act is to be administered according to the principle that
the wellbeing and best interests of a child born as a result of a
surrogacy arrangement, both through childhood and for the
rest of his or her life, are paramount.
(3) Subject to subsection (2), this Act is to be administered
according to the following principles—
(a) a child born as a result of a surrogacy arrangement
should be cared for in a way that—
(i) ensures a safe, stable and nurturing family and
home life; and
(ii) promotes openness and honesty about the child’s
birth parentage; and
(iii) promotes the development of the child’s emotional,
mental, physical and social wellbeing;
(b) the same status, protection and support should be
available to a child born as a result of a surrogacy
arrangement regardless of—
(i) how the child was conceived under the
arrangement; or
(ii) whether there is a genetic relationship between the
child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become
the child’s parents as a result of a transfer of
parentage;
(c) the long-term health and wellbeing of parties to a
surrogacy arrangement and their families should be
promoted;
(d) the autonomy of consenting adults in their private lives
should be respected.

The very approach under the Surrogacy Act and Mr Springborg's then Bill is contrary to the concern of Ms Francis- openness and honesty, so that children know where they come from. This is also consistent with sperm and egg donations in Queensland- where the child will know the genetic history of the donor, and can find out who the donor is after turning 18.


The irony of Ms Francis' position is that if the amendments proceed, it is likely that more Queenslanders will access surrogacy clinics in India than do now (although it is an offence in Queensland to do so), where the genetic knowledge of and identity of the sperm donor is not known, something that Ms Francis rightly decries.

Myth 8: The Surrogacy Act causes pain by forcefully removing children from their mothers

Ms Francis refers to forced adoptions and the Stolen Generation. The realities of both those shameful episodes were:

  • they occurred without the informed consent of the mothers- that is not the case under the Surrogacy Act, as I set out above. Surrogates, or as the Act calls them "birth mothers" know who the intended parents are. The Surrogacy Act, for example, says that birth mothers can manage their pregnancy and birth, just like other mothers.
  • they occurred with an overlay of moral righteousness, including the complicity of Governments,  about the unfitness of the mothers to care for the children. That is not suggested nor practised under the Surrogacy Act.
  • they were surrounded by acts of secrecy, which as I set out above does not reflect the practice of surrogacy in Queensland.
  • they reflected the ongoing desperation of people to have children. That reality remains, and is not confined to heterosexual couples.

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