Sunday, 12 August 2012

Will not criminalising gay, lesbian and single intended parents mean that the Sex Discrimination Act doesn't apply in Qld?

I have been asked to comment about whether the view expressed by the Queensland Attorney-General Jarrod Bleijie that although he intends to press ahead to make sure that gay and lesbian couples, singles, and heterosexual de facto couples of under 2 years will not be allowed to seek surrogacy in Queensland, and that it will not be a new criminal offence, that this will mean that my views that the proposals will be overriden by the Sex Discrimination Act no longer apply.

I remain of the view that the provisions of the Sex Discrimination Act will continue to apply.

What the Attorney's chief of staff has said was that there will be no new offences. This is not to say that the existing offence of entering into a banned surrogacy arrangement, namely a commercial surrogacy arrangement, could be amended, to change it to non-eligible surrogacy arrangement, and that "non-eligible" could be defined to mean commercial, or an arrangement when the people seeking surrogacy are not married or living in a heterosexual de facto relationship of less than 2 years.

We have not yet the benefit of a detailed public statement from the Attorney as to what is proposed.

In any event, the Attorney is saying that it is his intention to ensure that surrogacy arrangements are not available when the intended parents are gay or lesbian couples, single or heterosexual couples of less than 2 years.

This means that on the face of it, and as always we will have to wait and see th details in the Bill, that the effect of any changes will be to prevent same sex couples, singles or those in de facto relationships from pursuing surrogacy, and that this may prevent doctors from providing treatment, in breach of the doctors' obligations under section 22 of the Sex Discrimination Act. If the Bill does run foul of section 22, then it is possible that it will be overridden by that Act.

As Australian Lawyers for Human Rights' President Stephen Keim SC said:

The proposed changes appear to legislate for conduct that would otherwise be and may still be in breach of section 22 of the Sex Discrimination Act which makes it unlawful for a person to refuse to provide services to another person on the ground of the other person’s marital status (We note that s. 22 is expressly binding on the Crown in right of a State)

Another way that the Attorney could amend the Surrogacy Act to exclude same sex couples, singles and those in heterosexual relationships of less than 2 years from pursuing surrogacy would be to deny the Children's Court the ability to make parentage orders in those cases. That would solve any problem with the Sex Discrimination Act, but would not stop the surrogacies from proceeding. Doctors would still be able to treat. Traditional surrogacies involving home insemination would still proceed.

Intended parents (and the surrogate and her partner) would need to contemplate that:

  • the child would remain legally that of the surrogate and her partner;
  • remedies in the Family Court might be pursued.
In my view, surrogacies would still happen, in any event, even if criminality were to occur, as occurred before 2010 when all surrogacies were criminalised (but still happened).


  1. "Intended parents (and the surrogate and her partner) would need to contemplate that: the child would remain legally that of the surrogate and her partner; remedies in the Family Court might be pursued."

    Surrogacy wouldn't be occuring then? The whole point of surrogacy is a woman carrying a child that will not be hers after birth. That requires, legally, a transfer of parentage after birth, when it is disallowed the child remains the birth mother's and surrogacy therefore hasn't occured. Am I right?

    Therefore, wouldn't changing the surrogacy act effectively be enough to prevent any gay surrogacy from happening, regardless of new offences or not?

  2. Ah, no. I think that the starting point is to work out why surrogacy occurs. It occurs because an intended parent or parents want to have children. They are desperate to have children. Surrogacy is the option of last resort. For whatever reason, the other options are not available. Queensland used to criminalise all forms of surrogacy under the Surrogate Parenthood Act 1988. It was clear when Linda Lavarch and her parliamentary committee reviewed the rules to do with altruistic surrogacy in 2008 that surrogacy had continued, despite it being illegal for the previous 20 years. During that time, surrogates remained as the legal parents of the children. There is little to deter traditional surrogacy between friends who want to have children, other than the requirement to have IVF. When given a choice between not having a baby, and having a baby with doubt about the ability to have the baby as legally theirs, intended parents will invariably choose to have the baby. As long as they can find a surrogate (and this has happened in the past) then altruistic surrogacy by intended gay parents will continue.