Sharon Claydon (Newcastle, Australian Labor Party) Share this | Hansard source

I thank the Chair of the House of Representatives Standing Committee on Social Policy and Legal Affairs, the honourable member for Dawson, for his update regarding the inquiry into surrogacy and wish to make a brief statement. As deputy chair of the committee, the commencement of this inquiry in full is most welcome. The committee first resolved to inquire into surrogacy arrangements in Australia in December 2014 in response to a matter arising from the 2013-14 annual report of the Family Law Council and reported with recommendations to launch a full inquiry in March 2015 following preliminary roundtable discussions.

As detailed by the chair, surrogacy is both legislatively and ethically complex. It is becoming more complex as legal frameworks lose pace with advances in reproductive technology and the rapid growth of international commercial surrogacy. Issues that could not have been anticipated as little as 30 years ago—the separation, for example, of biological, social and legal parentage; and, in some cases, the nexus of commerce and parenthood—must be addressed. Despite the complexity, international commercial surrogacy arrangements being entered into by Australians continue to grow via a number of countries, chiefly Thailand, India, Nepal and Cambodia. Over recent years Australia has experienced a sharp rise in parents commissioning international commercial surrogacy arrangements. Clearly, many Australian couples have a strong desire to have a biologically related child and will go to great lengths to have one. In India alone, the number of Australian couples seeking surrogate mothers rose over 300 per cent over the five-year period from 2008 to 2012—from 126 children to 519 children.

The commercial and competitive practice in this unregulated market is giving rise to a range of human rights issues. Associate Professor of Law of Indiana University, Margaret Ryznar, warned of the dangers of the current situation and suggested the conditions were creating an unwholesome race to the bottom, where commissioning parents may engage in 'rampant forum shopping … seeking the best surrogacy prices and conditions'.

The human rights and roles of all parties in the arrangement must be considered: the surrogate mother, the surrogate child and the commissioning parents. As detailed by Chief Justice Pascoe of the Federal Circuit Court of Australia:

The difficulty in discussing the issue of surrogacy is reconciling each of the parties' roles in the arrangement. Each is critical and should be equal, however this is not the reality. As such, there is a real risk that human rights may be ignored for the sake of completion of the contract.

Surrogate mothers may have very few protections in countries either where such practices are unregulated or where health care may be inadequate, putting the health of both the mother and the child in danger. Moreover, in the terms of many surrogacy contracts, the surrogate mother is effectively renting out her womb and, in doing so, often relinquishes her rights to autonomy over her body. The child's rights are compromised also, as the newborn has no way of being able to defend itself. And, because of the commercial nature of the arrangements, the child is effectively traded as goods.

Likewise, children want to know their parentage and identity, and Australia recognises the right of a child to 'preserve his or her identity', but the lack of access to genetic information and information regarding identity further increases the risks of children born in this largely unregulated international market. As again described by Chief Judge Pascoe, when it comes to the commissioning parents, they:

… are either seen as saints or devils as their role is either to highlight the blessing of having a child to love, nurture, and protect as a result of surrogacy, or to exploit women and children.

Chief Justice Pascoe and many others have spoken of the need to develop a nationally consistent approach to surrogacy which considers the rights and roles of all participants in the process. In a speech last year, the Chief Justice of the Family Court, Justice Diana Bryant, suggested that commercial surrogacy should be regulated and allowed in Australia to stop the exploitation of poor women and to protect the legal status of children caught up in the booming overseas surrogacy trade. There is no doubt that legislative change is required in Australia to address this complex issue, and I do hope, as anticipated, that this inquiry into surrogacy will outline the best path to follow for all parties.

See this speech in context