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Llewellyn, Shelby --- "Surrogacy Law Reform in South Australia: Are Surrogacy Registers a New Way Forward in Australia?" [2015] UTasLawRw 16; (2015) 34(2) University of Tasmania Law Review 130


Surrogacy Law Reform in South Australia: Are Surrogacy Registers a New Way Forward in Australia?

SHELBY LLEWELLYN[*]

I INTRODUCTION

Altruistic surrogacy is legal in all states and territories except the Northern Territory, however laws vary greatly between these jurisdictions. This gap in regulation widened on 2 July 2015 when the South Australian Parliament passed the Family Relationships (Surrogacy) Amendment Bill 2014.[1] Amongst the amendments was a proposal for the creation of a surrogacy register, the first of its kind in Australia. It allows suitable volunteer surrogates to place their names on the Registry and be later assigned to couples seeking a surrogate. John Gardner’s speech during the second reading in the House of Assembly cites the purpose of the Register as ‘making surrogacy more accessible’ and ‘reducing the level of people who are seeking to access surrogacy overseas’.[2] This paper suggests that this Registry is capable of achieving these objectives and is a model that may be successful not only in South Australia (SA) but also nationally.

II SURROGACY LAWS IN AUSTRALIA

Altruistic surrogacy, as opposed to commercial surrogacy, permits the reimbursement of costs associated with the pregnancy but forbids payment for the service itself. Commercial surrogacy is prohibited in all Australian states and territories and subject to penalties outlined in the respective legislation.[3] Despite matters of family law being generally delegated to the Commonwealth,[4] surrogacy is regulated at the state level. As noted in the second reading speech in the Legislative Council, the Federal Parliament is not inclined to assume surrogacy as a federal issue at this point in time, but instead prefers to ‘work with states to improve current laws and standards and to make access to surrogacy arrangements in Australia easier for approved prospective parents’.[5]

Major inconsistencies between surrogacy legislation include access to surrogacy for homosexual couples and single people, whether the commissioning parents are required to gain approval by a designated legislative body and limitations regarding contribution of genetic material either by the commissioning parents or the surrogate mother.[6]

Although the exact prevalence of overseas surrogacy is unknown, a study undertaken by Surrogacy Australia found that in 2010-2011, 269 children were born to Australian commissioning parents via international surrogates.[7] The following year recorded similar numbers with 257 children born through these arrangements in 2011-2012.[8] Australian jurisdictions are unable to directly regulate the surrogacy process in overseas countries, leading to a myriad of social and legal problems such as: ensuring the best interests of the child in countries where this is not the primary concern, the ethical implications of commercial surrogacy in (often) developing countries, protecting the legal rights of all parties to the agreement and regulation of medical providers and agencies.[9] Prior to the Amendment Bill, there was no regulation of overseas commercial surrogacy in South Australia.[10] Where commissioning parents opted to enter into an overseas surrogacy agreement, they would either adopt the child or apply for a parentage order from the SA Youth Court, otherwise the regular parentage presumptions under the Family Law Act 1975 (Cth)[11] would apply.[12] The Register aims to stem the flow of commissioning parents seeking out commercial arrangements overseas by providing alternative means of acquiring a surrogate. This paper will not attempt to address the complex ethical and legal issues posed by overseas commercial surrogacy arrangements or evaluate the whole Amendment Bill. Rather, this paper will assess the Register’s ability to reduce the need for Australian couples to seek out these services.

III THE SA AMENDMENT BILL

Mr John Dawkins, a Liberal member in the Legislative Council, introduced the Family Relationships (Surrogacy) Amendment Bill 2014 on 12 November 2014 as a private member’s bill. It served as a response to criticisms regarding the original Bill which legalised altruistic surrogacy in SA (also introduced by Mr Dawkins) as well as the ‘Baby Gammy’ incident.[13] In addition to the Register, the Amendment Bill also allowed for reimbursement of costs incurred by the surrogate mother, regulated overseas surrogacy through a ministerial approval model and introduced a requirement for regular reviews of surrogacy laws.[14]

Interestingly, the Bill did not seek to allow access to surrogacy agreements for homosexual men. SA is one of the last remaining states to impose this restriction.[15] The Bill’s Sponsor defends this position based on the unfortunate fact that had this amendment been included; it is unlikely the Bill would have passed.[16] Many members of Parliament, from all different factions, would have opposed the Bill.[17] For example, the Family First Party opposed the Bill but neglected to actively run a campaign against.[18] The Sponsor speculates that this was due to omission of this amendment.[19] The Office of the Parliamentary Counsel also advised the Sponsor that such an amendment was inappropriate for this Bill.[20]

All major parties allowed a conscience vote.[21] The Bill was passed in both the Legislative Council and the House of Assembly on voices.[22] In the Legislative Council, the Bill was generally well received with some concern expressed as to the actual implementation of the Register.[23] The Bill also received strong support in the House of Assembly with one member rising to oppose the Bill based upon his personal view that surrogacy encouraged the commodification of children.[24]

IV INTENDED OPERATION OF THE REGISTER (SECTION 10FB)

The Bill amended the Family Relationships Act 1975 (SA), and amongst other provisions, provided for the inclusion of s 10FB. The Register itself is established under s 10FB(1) whereby ‘the Minister must establish a register... of women who are willing to act as a surrogate mother’. The Minister responsible will be the Minister for Families and Communities.[25] The Sponsor suggests this would instead be the Minister for Communities and Social Inclusion.[26] Though not outlined by the legislation, the Attorney-General’s Department of SA is currently establishing the Register, with input from the Health Minister.[27] The Register will come into operation once regulations are finalised.[28]

Although the Register is not available for inspection by the public,[29] Dawkins anticipates that commissioning parents may be referred by a medical or fertility specialist, for example, when in-vitro fertilisation (IVF) has failed to result in a pregnancy.[30] The intention of the Register is that ‘only registered organisations as approved by the Minister would have the ability to access the register’.[31] Only volunteers that are deemed appropriate by the registered organisations for the commissioning couple will be recommended by these organisations.[32] However these recommendations are subject to the final regulations.

Section 10FB(2) also states that the Register ‘must be kept and maintained in accordance with the State Framework for Altruistic Surrogacy. The State Framework is also yet to be finalised, it is therefore uncertain what this sub-section will add to the operation of the Register.

Section 10FB(3) sets out the eligibility criteria for women seeking to register as volunteers. The limitations are minimal, requiring applicants to be at least 18 years old,[33] a resident and domiciled in SA,[34] and a permanent resident of Australia.[35] This sub-section also requires volunteers satisfy ‘any other requirement set out in the regulations for the purposes of this subsection’.[36] Presumably, this broad provision refers to other requirements imposed on surrogates by the Act such as assessment by a counselling service[37] and any future requirements. The Sponsor also suggests that it would be in the private organisations’ interests to further evaluate candidates.[38] Whether this becomes common practice will remain to be seen.

V COMMENTARY

The following section will evaluate the Register and whether it should be adopted by the remaining states as a template. It should be noted that until regulations are finalised and the Register put into practice, this paper can only make theoretical predictions as to its viability as an alternative option for couples seeking out surrogates.

A Meeting the Demand for Surrogates

In order to provide a viable alternative for couples seeking local surrogates, the Register must be a reliable source of volunteers. There are a number of factors the Register must overcome to ensure the demand for surrogates are being met. For example, the Register is a new concept in Australia and unknown to most suitable women. The SA government could overcome this barrier by implementing education and advertising schemes such as medical clinic informational brochures and media releases with the objective of increasing social discourse surrounding this sensitive subject.

In a similar vein, the Register may struggle to attract suitable volunteers as infertility largely remains a private issue that very few are willing to speak about.[39] Without personal experience or understanding of the experience of someone close to them, women may be less inclined to volunteer. Again, increasing awareness and discussion of the subject may assist in encouraging women to apply.

However, even if education and advertisement campaigns were successful there remains the issue of the substantial commitment required by surrogates in volunteering their body for a number of months as well as participating in counselling and legal processes before and after the birth. Although the Bill somewhat amended the situation in SA, allowing surrogates to be reimbursed for reasonable costs associated with the pregnancy,[40] this would hardly be seen as adequate compensation for many women. A debate regarding legalisation of commercial surrogacy in Australia is beyond on the scope of this paper, however this Register may potentially add fuel to this discussion either way. Should the model fail for lack of volunteers, it may support those in favour of legalising commercial surrogacy in Australia, and vice versa.

Although the Register may face these barriers in attracting volunteers, the number of Australian couples attempting to undergo surrogacy treatments is still relatively low.[41] Therefore, although the Register will require some volunteers, it will not require the same quantity (or urgency) as other comparative volunteer medical services such as blood or organ donation. So long as supply of volunteers can generally meet the demand for surrogates, the Register will fulfil its intended purpose.

B Suitability of Surrogates

Secondly, the suitability of surrogates is key to ensuring the Register can provide couples with volunteers emotionally and physically able to fulfil the non-enforceable agreement. The Register will not fulfil its intended purpose if it becomes the catalyst for transfer of parentage disputes; potentially creating a perverse incentive, actually encouraging couples to seek out overseas arrangements.

Compared to other Australian jurisdictions, SA imposes minimal requirements on those seeking to become surrogates. This paper argues that stricter requirements seen in other Australian states and territories should be followed with the exception of preventing surrogates from contributing genetic material.

Unlike altruistic surrogacy generally practiced in Australia, there would be no initial personal relationship between the surrogate and the commissioning parents where a volunteer from the Register is involved. As a result, a surrogate may feel less of an obligation to complete the transfer of parentage. Although the surrogate mother is legally entitled to refuse transfer of parentage, such an outcome would frustrate the intended purpose of the Register.

Stricter requirements should be enforced regarding the age of the surrogate mother and the requirement that the surrogate mother has previously given birth. Only SA and the Australian Capital Territory (ACT) (which does not explicitly outline an age minimum), require the surrogate mother be a minimum of 18 years of age.[42] The remaining states require that the surrogate mothers be at least 25 years of age.[43] Imposing a higher age restriction may aid the Register in ensuring that volunteers have reached a certain level of maturity. Although it is impossible to say all volunteers are of sufficient maturity by age 25, it goes someway to providing further safeguards against unsuitable surrogates.

Further, many states require that the surrogate mother has previously given birth to a live child, including Victoria, Western Australia and Tasmania.[44] Ekberg argues that this ensures the surrogate mothers are fully aware of what is involved in giving birth and are therefore in a better position to consent to the procedure.[45] This paper agrees with this assessment and adds that this requirement may also indicate that the birth mother will enjoy a safe pregnancy and deliver a healthy child.

The ACT, Victoria and Western Australia also prohibit surrogacy where the surrogate contributes genetic material, also referred to as ‘traditional surrogacy’.[46] Trowse argues that this is a protective measure as it reduces the number of ‘hurdles’ (namely the biological connection) the surrogate mother must overcome in transferring parentage of the child.[47] However this claim regarding emotional consequences, as Trowse notes, is not supported by empirical evidence.[48] This statement potentially misunderstands surrogate mothers’ motivation for volunteering as well as their emotional capabilities. It also seems to ignore counselling requirements imposed by all jurisdictions except the Northern Territory.

VI CONCLUSION: SHOULD THIS REFORM BE ADOPTED NATIONWIDE?

This Bill prompts the question: should other states and territories adopt a register model? This article argues that the Register is a positive step forward for surrogacy regulation in Australia as it goes further than any existing legislation by attempting to facilitate, rather than merely regulate agreements between commissioning couples and surrogates. The flow-on effects of this include increased access to domestic surrogacy agreements for South Australians and a corresponding decrease in the number of couples needing to resort to commercial arrangements overseas.

Although we are yet to understand how the Register will work in practice, the model as conceptualised above has significant merit and may potentially improve access to surrogacy agreements for commissioning parents within Australia. Lack of willing altruistic surrogates is a common problem across all jurisdictions which has not been the subject of concerted regulation until now. Everington’s survey of commissioning parents who considered altruistic surrogacy confirms this.[49] Of the 117 respondents, 51 per cent did not undertake altruistic surrogacy as they did not have any family or friends willing to act as a surrogate.[50]

Ideally, the remaining states and territories should wait to view the success or failure of the SA Register and adopt a model that addresses any major flaws. The Sponsor himself does not purport to claim the Register is a perfect model and highlighted that statistics regarding its use would not be available for another ‘couple of years’.[51]

The Family Relationships (Surrogacy) Amendment Bill 2014 is an important piece of legislation for surrogacy in SA, and potentially other Australian states and territories. It acknowledges the difficulties faced by couples in finding a suitable surrogate when considering surrogacy. Most importantly, it also represents the first attempt by an Australian jurisdiction to directly attempt to facilitate surrogacy agreements rather than merely regulate thereby addressing the shortage of surrogates (volunteer or otherwise) available to Australian commissioning parents. For this reason, this paper argues this Bill represents a way forward for future surrogacy laws in Australia. However, without proper implementation, this Amendment may merely provide a distraction from pertinent surrogacy debates surrounding as uniform legislation and the introduction of commercial surrogacy in Australia


[*] Final year BA/LLB (Hons 1) student at the University of Tasmania and co-editor of the University of Tasmania Law Review 2015. The author wishes to thank Distinguished Professor Don Chalmers for his helpful comments in the preparation of this paper. The author also wishes to thank Mr John Dawkins MP for his helpful insights without which the paper could not be written. The author is solely responsible for any errors or omissions in this paper.

[1] John Dawkins, ‘Surrogacy Bill passes the Lower House’ (Media Release, 2 July 2015) 1 <http://www.johndawkins.com.au/Media-Releases/ID/480/Surrogacy-Bill-passes-the-Lower-House> .

[2] South Australia, Parliamentary Debates, House of Assembly, 4 June 2015, 2 (John Gardner).

[3] Parentage Act 2004 (ACT) s 41; Surrogacy Act 2010 (NSW) s 8; Surrogacy Act 2010 (Qld) s 56; Family Relationships Act 1975 (SA) s 10G(3); Surrogacy Act 2012 (Tas) s 41; Assisted Reproductive Treatment Act 2008 (Vic) s 44(1); Surrogacy Act 2008 (WA) s 8.

[4] See generally, Family Law Act 1975 (Cth).

[5] South Australia, Parliamentary Debates, House of Assembly, 4 June 2015, 1 (John Gardner).

[6] Stephen Page and Alexandra Harland, ‘Tiptoe through the minefield: A State by State comparison of surrogacy laws in Australia’ (2011) 1 Family Law Review 198.

[7] Sam G Everingham, Martyn A Stafford-Bell and Karin Hammarberg, ‘Australians’ use of surrogacy’ (2014) 201(5) Medical Journal of Australia 1, 1.

[8] Louise Johnson, Eric Blyth and Karin Hammarberg, ‘Barriers for domestic surrogacy and challenges of transnational surrogacy in the context of Australians undertaking surrogacy in India’ (2014) 22 Journal of Law and Medicine 136, 147.

[9] Ibid.

[10] Email from John Dawkins to Shelby Llewellyn, 7 October 2015.

[11] See generally, Family Law Act 1975 (Cth) ss 69P-U.

[12] Email from John Dawkins to Shelby Llewellyn, 7 October 2015.

[13] South Australia, Parliamentary Debates, Legislative Council, 12 November 2014, 1 (John Dawkins).

[14] Ibid 1-2.

[15] Family Relationships Act 1975 (SA) s 10HA(2)(b)(iii).

[16] Interview with John Dawkins (Telephone interview, 11 September 2015).

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] John Dawkins, ‘Surrogacy Bill prepares to face final hurdle’ (Media Release, 4 June 2015) 1 <http://www.johndawkins.com.au/Media-Releases/ID/467/Surrogacy-Bill-prepares-for-final-hurdle> .

[22] Interview with John Dawkins (Telephone interview, 11 September 2015).

[23] South Australia, Parliamentary Debates, Legislative Council, 3 December 2014, 1, 2, 4 (Tung Ngo, Rob Lucas, Ian Hunter).

[24] South Australia, Parliamentary Debates, House of Assembly, 4 June 2015, 1 (Tom Kenyon).

[25] Family Relationships Act 1975 (SA) s 10HA(1).

[26] Interview with John Dawkins (Telephone interview, 11 September 2015).

[27] Ibid.

[28] Ibid.

[29] Family Relationships Act 1975 (SA) s 10FB(4).

[30] Interview with John Dawkins (Telephone interview, 11 September 2015).

[31] Email from John Dawkins to Shelby Llewellyn, 7 October 2015.

[32] Ibid.

[33] Family Relationships Act 1975 (SA) s 10FB(3)(a).

[34] Ibid s 10FB(3)(b).

[35] Ibid s 10FB(3)(c).

[36] Ibid s 10FB(3)(d).

[37] Family Relationships Act 1975 (SA) s 10HA(2)(b)(vi).

[38] Interview with John Dawkins (Telephone interview, 11 September 2015).

[39] Ibid.

[40] Family Relationships Act 1975 (SA) s 10HA(2)(ix).

[41] Everingham, Stafford-Bell and Hammarberg, above n 12; Shelby Llewellyn, Time for a Third Wave? An Empirical Study of Altruistic Surrogacy in Australia (LLB Honours Thesis, University of Tasmania, 2015).

[42] Family Relationships Act 1975 (SA) s 10HA.

[43] Surrogacy Act 2010 (NSW) s 27; Surrogacy Act 2010 (Qld) ss 22(f), (g); Surrogacy Act 2012 (Tas) s 16(2)(c); Assisted Reproductive Treatment Act 2008 (Vic) s 40(1)(b); Status of Children Act 1974 (Vic) s 23(2)(a); Surrogacy Act 2008 (WA) s 19(a)(i).

[44] Surrogacy Act 2012 (Tas) s 16(2)(d); Assisted Reproductive Treatment Act 2008 (Vic) s 40(1)(ac); Surrogacy Act 2008 (WA) s 17(1)(a)(ii).

[45] Merryn Elizabeth Ekberg, ‘Ethical, legal and social issues to consider when designing a surrogacy law’ (2014) 21 Journal of Law and Medicine 728, 732.

[46] Parentage Act 2004 (ACT) s 24(b); Assisted Reproductive Treatment Act 2008 (Vic) s 40(1)(ab); Surrogacy Act 2008 (WA) s 21(4)(a).

[47] Pip Trowse, ‘Surrogacy: Is it harder to relinquish genes?’ (2011) 18 Journal of Law and Medicine 614, 617.

[48] Ibid.

[49] Sam Everingham, ‘Use of surrogacy by Australians: Implications for policy and law reform’ in Alan Hayes and Daryl Higgins (eds), Selected essays on contemporary issues for Australia (Australian Institute of Family Studies, 2014) 67.

[50] Ibid 71.

[51] Interview with John Dawkins (Telephone interview, 11 September 2015).


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