Monday, 8 February 2016
Social Policy and Legal Affairs Committee
On behalf of the Standing Committee on Social Policy and Legal Affairs, I wish to make a statement concerning the progress of the committee's inquiry into surrogacy. The desire to have a child is one held by many Australians. For some, conceiving a child naturally is not an option and this may drive them to consider other options. Some turn to surrogacy either within our shores or overseas. In Australia altruistic surrogacy, where reasonable costs are reimbursed to the surrogate mother, is permitted in some states.
However, many Australians have headed overseas to seek commercial surrogacy arrangements, which are illegal in this country. Commercial surrogacy is or has been facilitated through private clinics in countries such as Thailand, India, Nepal and Cambodia. In some of those countries, the practice is now illegal. The women who have become surrogates are often from disadvantaged backgrounds and there is evidence that, in some cases, they may have had little choice in the matter. Some may have been forced to have multiple children, all at a time convenient to the intending parents who have paid for the privilege of having a child. Surrogate mothers may have few protections in countries where such practices are either unregulated or where health care may be inadequate. The risks to their personal health and that of the child are very high. Surrogate mothers may have few protections in countries where such practices are unregulated or where health care may be inadequate. The risks to their personal health and that of the child are very high. Once they are unable to bear any more children they are left to fend for themselves.
Two well-publicised cases involving Australians—that of baby Gammy in Thailand and that of a twin that was left behind in India—raised concerns and a range of issues regarding child protection and exploitation. Such cases highlight that the future welfare of the child must be paramount and must be the paramount consideration when we determine how to regulate surrogacy.
The House of Representatives Standing Committee on Social Policy and Legal Affairs, which I chair, has been tasked with considering the regulatory and legislative aspects of international and domestic surrogacy arrangements. The inquiry follows a preliminary roundtable that we held on the issue in early 2015. From the Commonwealth's perspective, the inquiry involves a wide range of considerations such as family law, immigration, citizenship, passports and child support matters. We as a nation have a range of international obligations, especially regarding the protection of children, which we have to uphold.
Last week the committee heard from Chief Judge John Pascoe who heads Australia's contribution to the work of The Hague in considering an international convention around surrogacy. Chief Judge Justice Pascoe spoke of the need to develop a nationally consistent approach to surrogacy which considers the rights of all participants in the process, aiming particularly to reduce exploitation and ensure surrogacy arrangements are not sought by those seeking to harm children. He proposed that in cases concerning surrogate children automatic presumption to an Australian passport should not apply.
Domestically, every state and territory, with the exception of the Northern Territory, has some form of legislation regarding surrogacy. Though not consistent in their application or reach, the common thread amongst this legislation is the determination of who can be deemed to be a parent of a child. In 2009 the Council of Australian Governments, COAG, released a discussion paper aimed at harmonising domestic legislation, but it was not progressed. Recently a number of state and territory jurisdictions have moved to review or strengthen their legislative response to surrogacy.
My committee will consider a number of things, including Australia's regional responsibility in relation to surrogacy. It will particularly consider possible exploitation and unethical practices of clinics overseas. We will consider how best to protect the rights of any child in any arrangement here or overseas, and I have to say we will be particularly looking at the rights of children to know their biological heritage. We are going to be looking at harmonising Australia's varied domestic legislation. We are going to be looking at a possible responsible approach to domestic surrogacy arrangements. The committee intends to present its report to this Parliament in June.
Given the complexities of legislative, jurisdictional and ethical issues, as well as international obligations, we anticipate that our report will set forward a clear direction for the nation on domestic surrogacy arrangements. No doubt legislative change will be required, as will the agreement of all states and territories, if we are going to do this. These things do not come quickly or easily. Surrogacy is ultimately about the best interests of the child. The committee considers that a public debate on a national approach is long overdue.
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.