The Federal Parliamentary inquiry has concluded that
commercial surrogacy in Australia continue to be banned, that there be
national, non-discriminatory surrogacy laws, and that it be harder for
Australians to undertake surrogacy in developing countries.
The inquiry, by the House of Representatives Select
Committee on Social Policy and Legal Affairs, chaired by Nationals MP George
Christensen, raised concerns about the potential for exploitation of both
surrogates and children, and questioned whether birth certificates should issue
that included the name of the surrogate and any donors of genetic material, as
well as that of the parents.
The Committee has recognised that Australians will
continue to access surrogacy overseas. It is likely that, with continued
restrictions on surrogacy in Australia, that there will remain a shortage of
available surrogates in Australia, meaning that if anything there will continue
to be a growth in the number of Australians accessing commercial surrogacy
overseas. However, the recommendations of the inquiry are to make it harder for
Australians to access surrogacy overseas, by Australian intended parents having
to prove to Australian officials that they have not broken the law in Australia
or overseas before they can bring their children into Australia. Whether this
will lead to children being stranded overseas remains to be seen.
The full list of recommendations is:
Recommendation
1
The
Committee recommends that the practice of commercial surrogacy remain illegal
in Australia.
Recommendation
2
The
Committee recommends that the Australian Government, in conjunction with the
Council of Australian Governments, consider the development of a model national
law that facilitates altruistic surrogacy in Australia. The model law should
have regard to the following four guiding principles:
·
that
the best interests of the child should be protected (including the child’s
safety and well-being and the child’s right to know about their origins),
·
that
the surrogate mother is able to make a free and informed decision about whether
to act as a surrogate,
·
that
sufficient regulatory protections are in place to protect the surrogate mother
from exploitation, and
·
that
there is legal clarity about the parent-child relationships that result from
the arrangement.
Recommendation 3
The Committee recommends that
the Attorney-General request the Australian Law Reform Commission (ALRC) to
conduct a 12-month inquiry into the surrogacy laws of Australian States and
Territories, with a view to developing a model national law on altruistic
surrogacy. The Attorney-General should request that the ALRC consider:
·
first
and foremost, the best interests of the child,
·
previous
reviews of Australian surrogacy laws, including the 2009 report of the Standing
Committee on Attorneys-General and the 2013 Family Law Council report on
Parentage and the Family Law Act 1975,
·
the
need for State and Territory laws to be non-discriminatory,
·
the
need for mandatory, independent and in-person counselling for all parties
before entering into a surrogacy arrangement, during pregnancy, after the
birth, and at relinquishment,
·
the
need for background checks, medical and psychological screening, and
independent legal advice for all parties entering into a surrogacy arrangement,
·
the
need for parties to enter into a non-binding surrogacy agreement which sets out
shared expectations of all parties, including dispute resolution processes, and
which ensures that parties respect the birth mother's right to make decisions
about her own health and that of the child,
·
the
processes by which parental responsibility is transferred from the birth mother
to intended parents, and when this transfer should take place,
·
the
need for adequate reimbursement for the birth mother for legal, medical and
other expenses incurred as a consequence of the surrogacy,
·
the
need for a closed register of surrogates and intended parents, to be
administered by a Government body, access to which may be granted following
background checks, and medical and psychological screening, and
·
whether
States and Territories should keep standardised statistical information on
families formed through surrogacy to enable long- term studies of surrogacy's
effect on families.
Recommendation 4
The Committee recommends that
the Attorney-General request that the Australian Law Reform Commission consider
the issue of birth certificates as part of its inquiry as set out in
Recommendation 3. In particular, the ALRC should consider whether a child's
birth certificate should contain information on all gestational, genetic and
intended parents, including a record that the child was born as a result of a
surrogacy arrangement
Recommendation
5 The Committee recommends that, within six
months of the proposed report of the Australian Law Reform Commission being
presented to the Attorney-General, the Attorney-General should request that the
Council of Australian Governments (COAG) commit to the following actions:
·
consultation
with all Australian States and Territories in relation to the proposed model,
and
·
the
development of national uniform legislation on altruistic surrogacy to be
implemented in all Australian States and Territories.
The Committee considers
that the deliberations by COAG should not exceed 12 months.
Recommendation 6
The Committee recommends that
the Australian Government develop a website that provides advice and
information for Australians considering domestic altruistic surrogacy. The
website should include:
·
clear
advice on the role of Australian Government support and service provision for
intended parents, surrogates and children including Medicare, social security
& welfare payments, child support, paid parental leave,
·
clear
advice on surrogacy legislation in each Australian State and Territory, and
·
clear advice on the support and services funded and provided for by each
Australian State and Territory including relevant health, counselling and legal
services available.
Recommendation 7
The Committee recommends that
the Australian Government establish an interdepartmental taskforce (which
should include eminent jurists with relevant expertise) to report in 12 months
on ways to address the situation of Australians who choose enter into offshore
surrogacy arrangements, with respect to:
·
protecting
the rights of the child, particularly their rights to be free from
exploitation, to know their genetic heritage, to know the circumstances of
their birth, and to have an ongoing relationship with their birth mother and
any siblings or genetic donor/s,
·
ensuring
birth mothers give their free and informed consent and reducing the likelihood
that they face exploitation,
·
ensuring
that Australians who enter into offshore surrogacy arrangements meet their
responsibility to act in the best interest of all of their children, and
·
considering
whether it should be unlawful to engage in offshore surrogacy in any overseas
jurisdiction where commercial surrogacy is prohibited.
While not condoning
Australians' use of offshore surrogacy, the aim of the taskforce should be to
ensure that where the regulatory, economic or social conditions in a particular
jurisdiction give rise to an increased risk of exploitation or rights
violations, Australians entering into or facilitating surrogacy arrangements in
that jurisdiction are made aware of those risks, and are subject to a more
stringent investigative process to ensure that the rights of the birth mother
and the child have not been infringed.
Recommendation 8
The Committee recommends that
the interdepartmental taskforce should undertake a systematic audit of
surrogacy destination countries to assess the extent to which surrogacy
practices in these countries meet the requirements laid out in recommendation
3. The Committee considers that this audit will assist in informing the
Australian Government’s response to the Australians who choose to enter into
offshore surrogacy arrangements.
Recommendation 9
The Committee recommends that
the Australian Government introduce legislation to amend the Migration Act
1958 such that Australian residents seeking a passport for a young child to
return to Australia are subject to screening by Department of Immigration and
Border Protection officials to determine whether they have breached Australian
or international surrogacy laws while outside Australia, and that, where the
Department is satisfied that breaches have occurred, the Minister for
Immigration is given the authority to make determinations in the best interests
of the child, including in relation to the custody of the child.
Recommendation 10
The Committee recommends that
the Australian Government, in its representations to the Experts' Group on
Parentage/Surrogacy at the Permanent Bureau of the Hague Conference on Private
International Law should prioritise:
·
the
rights of the child, particularly their right to know their genetic heritage,
to know the circumstances of their birth, and to have ongoing relationships
with their birth mother and any siblings or genetic donor/s,
·
the
rights of surrogate mothers to be free from exploitation, and to only engage in
surrogacy arrangements to which they give their free and free informed consent,
and
·
the
development of an international convention dealing with the regulation of
parentage and surrogacy.
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