Tag Archives: commercial surrogacy

NSW Equality Bill Submission

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4 July 2022

Alex Greenwich

Member for Sydney

Via email: sydney@parliament.nsw.gov.au

Dear Mr Greenwich

Submission re Equality Bill Consultation

Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.

Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.

As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.

This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.

If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.

In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.

LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)

The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).

However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:

1. Replace homosexuality with sexual orientation

NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.

This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

2. Replace transgender with gender identity

NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.

The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.

3. Add a new protected attribute of sex characteristics

Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.

A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):

‘sex characteristics means a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

4. Add new protected attributes of sex work, and genetic characteristics

I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.

5. Remove special privileges for private educational authorities

The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.

This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.

There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.

In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]

6. Significantly narrow special privileges for religious organisations

In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.

While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.

Both para s56(c) and 56(d) should be repealed entirely.[ii]

7. Remove special privileges for faith-based adoption services

Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.

This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.

S59A should be repealed entirely.

8. Remove the specific transgender exception in superannuation

Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’

This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).

Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.

9. Significantly narrow the specific transgender exception in sport

Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.

This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.

At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.

Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).

10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics

Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.

I also support introducing civil prohibitions against vilification on the basis of sex characteristics.

11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)

If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.

Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)

As noted above, NSW also has the equal worst birth certificate laws in the country. It is one of just two jurisdictions, alongside Queensland, which still requires transgender people to have genital surgery in order to access identity documentation reflecting their gender identity. 

This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.

In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.

That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.

There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.

I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.

One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.

This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.

It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.

Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).

However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.

Ending non-consenting surgeries and other medical interventions on intersex children

The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.

In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.

Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.

On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:

‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.

‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].

I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.

Banning sexual orientation and gender identity conversion practices

The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).

These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.

In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).

Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).

My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.

However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.

Legalising commercial surrogacy in NSW

This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.

However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).

The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.

More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).

In this context, my personal view is that commercial surrogacy should be legalised in NSW.

There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.

However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.

The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.

Sincerely

Alastair Lawrie

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.

[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.

[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.

Submission to Commonwealth Parliamentary Inquiry into Surrogacy

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Update 19 May 2016:

In advance of the widely-anticipated election announcement by Malcolm Turnbull on Sunday May 8, a range of Parliamentary Committees handed down inquiry reports in the first week of May. This included the inquiry into surrogacy conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs, with their final report – called Surrogacy Matters – available here.

This update will provide a brief summary of that report, including consideration of whether they incorporated any of the recommendations made in my submission to the inquiry (included below).

Perhaps unsurprisingly, given the Committee was chaired by George ‘the Safe Schools program is like grooming’ Christensen, the Committee did not support any change in approach to commercial surrogacy in Australia:

Recommendation 1. The Committee recommends that the practice of commercial surrogacy remain illegal in Australia.

Nevertheless, this is still a disappointing outcome, particularly given the Committee did accept my suggestion that a body like the Australian Law Reform Commission (ALRC) could be tasked to develop best practice legislation in this area – they just decided to limit it to altruistic surrogacy:

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.

Looking at this recommendation in detail, I can see absolutely no reason why these same ‘guiding principles’ could not also be used to develop a framework for commercial surrogacy for inclusion in the model law (but that would take a Committee, and a Parliament, with more courage than the one that was just dissolved).

On the positive side, the Committee notes on page 5 that “[m]any inquiry participants also highlighted a number of discriminatory provisions that exist in relation to gender, marital status and sexual orientation” in state and territory laws (and referenced submissions from the Australian Human Rights Commission, myself, and the NSW Gay & Lesbian Rights Lobby).

As a result, one of the factors the Committee believes the ALRC should consider is “the need for State and Territory laws to be non-discriminatory” (Recommendation 3), which is obviously welcome.

However, the Committee’s recommendations around international commercial surrogacy are far less welcome – and far more frustrating.

The Committee acknowledged that the ban on domestic commercial surrogacy is a major contributing factor to Australian couples, including LGBTI couples, seeking access to commercial surrogacy in other countries. It also acknowledged that the criminalisation of this practice, by Queensland, NSW and the ACT, has so far been ineffective in stopping it.

But, instead of using this evidence to justify a reconsideration of the domestic prohibition of commercial surrogacy, the Committee decided to reinforce this ‘criminalisation’ agenda:

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.

So, in Christensen & co’s ideal world, Department of Immigration and Border Protection officials will investigate Australian families who return from overseas with children born through surrogacy arrangements and, presumably, assist in their criminal prosecution under state and territory law.

Most worrying of all is the proposal for the Minister for Immigration to make determinations about the custody of that child, including potentially stripping their parents of responsibility. Imagine for a moment the current Minister, Peter Dutton (or his predecessor, Scott Morrison) making such decisions, including about LGBTI families? Let’s hope that terrifying reality never comes to pass.

All in all then, while the Committee’s Surrogacy Matters report does include some positive recommendations (such as supporting the principle that state and territory surrogacy laws should be non-discriminatory), its failure to reconsider the ban on domestic commercial surrogacy, and its approach to international commercial surrogacy, is frustrating and worrying, respectively.

George Christensen

George Christensen, Committee Chair.

 

**********

Original Post:

Committee Secretary

House of Representatives Standing Committee on Social Policy and Legal Affairs

PO Box 6021

Parliament House

Canberra ACT 2600

spla.reps@aph.gov.au

 

Thursday 11 February 2016

 

To whom it may concern

 

Submission to Commonwealth Parliamentary Inquiry into Surrogacy

 

Thank you for the opportunity to make a submission to the inquiry into surrogacy, being conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs.

 

In this submission, I will not be addressing all eight terms of reference of the inquiry in detail.

 

Instead, I propose to focus on the following three issues:

 

  • Surrogacy and lesbian, gay, bisexual, transgender and intersex (LGBTI) parent(s)
  • National consistency and
  • Commercial surrogacy, including international commercial surrogacy.

 

These three issues are of particular relevance to the first three terms of reference of the inquiry:

 

  1. the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
  2. medical and welfare aspects for all parties, including regulatory requirements for intending parents and the role of health care providers, welfare services and other service providers [and]
  3. issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.

 

For context, I am writing this submission as an LGBTI advocate and activist, and as someone who is in a long-term same-sex relationship, but not as someone who intends to enter into a surrogacy arrangement at any point in the foreseeable future.

 

Surrogacy and LGBTI parents

 

While I am not an expert in surrogacy policy and/or law across Australia, I am aware that different jurisdictions have adopted different approaches to the eligibility of LGBTI people to access surrogacy.

 

Specifically, it is my understanding that, while most Australian jurisdictions now allow non-discriminatory access to altruistic surrogacy (including my current state of residence, NSW), some jurisdictions continue to prohibit same-sex couples solely on the basis of their sexual orientation – including both South Australia and Western Australia.

 

There can be no justification for this discrimination.

 

The overwhelming majority of credible research shows that children raised in same-sex parented families are as healthy, and as happy, as those raised by mixed-sex couples.

 

As Deborah Dempsey found in the 2013 research paper “Same-sex parented families in Australia”[i]:

 

“[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families” [emphasis added].

 

This conclusion was supported by research in the following year, by Dr Simon Crouch and others, that:

 

“children with same-sex attracted parents in Australia are being raised in a diverse range of family types. These children are faring well on most measures of child health and wellbeing, and demonstrate higher levels of family cohesion than population samples.”[ii]

 

These findings accord with reputable studies from overseas, with evidence consistently revealing that children from same-sex parented families experience the same levels of physical and mental health as their peers, if not better.

 

Given this, I believe that it is time for the remaining Australian jurisdictions to remove any outstanding discrimination against LGBTI people seeking access to surrogacy. To support this objective, the current inquiry should express its support for the equal treatment of LGBTI parents and prospective parents, and encourage remaining jurisdictions to amend their laws.

 

Recommendation 1: The Committee should expressly support the principle that there should be no discrimination against LGBTI people seeking access to surrogacy and should encourage jurisdictions that currently discriminate against LGBTI people in this area to remove such discrimination as a matter of priority.

 

National Consistency

 

The above issue (LGBTI eligibility) is just one area where there is significant inconsistency in the legislative approach to surrogacy across Australia.

 

There are a variety of other inconsistencies, including the very different treatment of international commercial surrogacy by different states and territories (which will be addressed in more detail below).

 

There seems to be little justification for Australian jurisdictions to adopt such widely divergent approaches.

 

Moreover, the differences in legislative approach can have significant impacts on people who may be mobile, moving regularly between jurisdictions, who are contemplating becoming parents and where surrogacy is one, or even the most likely, method in which this may occur.

 

Alternatively, the differences in legislative approaches to surrogacy may induce, or in some cases compel, people to move between states and territories, especially to avoid possible criminal sanction.

 

As someone who has already lived in four different jurisdictions for extended periods (and twice in one of those jurisdictions), it seems illogical that at different points in time I would not have had access to altruistic surrogacy due to where I lived at the time, or that currently accessing international commercial surrogacy would make me a criminal in some of those places, but not others.

 

Wherever possible – and provided that LGBTI people are not denied access to surrogacy because of their sexual orientation, gender identity or intersex status – I believe that the laws regulating surrogacy should be consistent across all Australian jurisdictions, and that the current inquiry should adopt this as a principle for proposed reforms.

 

Recommendation 2: Provided that LGBTI people are not discriminated against, the Committee should expressly support the principle that the laws regulating surrogacy should be uniform across Australian states and territories, wherever possible.

 

Commercial Surrogacy, including International Commercial Surrogacy

 

The first two parts of this submission have covered issues that should be uncontroversial for most people – that LGBTI parents, and prospective parents, should be treated equally, and that, wherever possible, there should be national consistency on the laws which apply to surrogacy.

 

There is no denying, however, that the third issue is inherently controversial – and that is the question of whether, and if so how, commercial surrogacy should be allowed in Australia.

The current response by Australian states and territories has been to prohibit domestic commercial surrogacy in all circumstances, with three jurisdictions[iii] going one step further and criminalising participation in international commercial surrogacy arrangements as well.

 

My approach to this issue is informed by the following four observations:

 

  1. Surrogacy arrangements, and especially commercial surrogacy arrangements, contain a risk of exploitation of the surrogate
  2. The risk of exploitation significantly increases in the absence of appropriate regulatory oversight
  3. There are some women who perform the role of surrogate, who wish to be paid for this service and who would not be exploited by doing so, and
  4. There are many prospective parents, including but not limited to LGBTI (and especially gay male) people, for whom commercial surrogacy is their most likely avenue to become parents and who are therefore willing to participate in these arrangements, domestically or internationally and, in some cases, irrespective of its potential illegality.

 

Based on these observations, I do not believe that the current approach adopted by the states and territories on this issue is the correct one.

 

Instead, it is my view that it would be preferable for commercial surrogacy to be made lawful within Australia, but only within a regulatory framework that includes appropriate safeguards and oversight to minimise the risk of exploitation of surrogates.

 

As I have submitted previously to the NSW Government[iv], and to the National Health & Medical Research Council[v], I believe that the NSW and/or Australian Law Reform Commissions could be tasked with investigating this issue, and proposing a regulatory framework that significantly reduces the risk of surrogate exploitation.

 

This framework could then be considered by the respective Parliaments, rather than debating the issue of commercial surrogacy in the abstract, which is too often the case, and which too easily leads to blanket bans rather than a more considered approach.

 

Indeed, as I wrote to the NHMRC:

 

“While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with… broad-sweeping and all-encompassing statement[s] against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

 

“Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

 

“However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, certainly in developing countries and/or countries which do not closely regulate surrogacy arrangements.

 

“It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation…

 

“I… believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

 

“The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).”

 

It is my view that this process has the potential to produce a regulatory framework to allow commercial surrogacy within Australia that would significantly reduce the risk of surrogate exploitation and therefore allay the concerns, and garner the support, of a majority of stakeholders.

 

Recommendation 3: The Committee should recommend that the Australian Law Reform Commission be asked to review the issue of domestic commercial surrogacy and develop a regulatory scheme that significantly reduces the risk of exploitation of surrogates and which is then presented for the consideration of Parliament.

 

The above discussion obviously focuses on the issue of domestic commercial surrogacy, leaving the even more vexed question of international commercial surrogacy unanswered.

 

To some extent, I would hope that, were commercial surrogacy to be allowed within Australia, the demand to engage in international commercial surrogacy arrangements would be significantly reduced.

 

However, the introduction of such a scheme, either nationwide or in some states and/or territories, is likely to be years away. In the meantime, Australian individuals and couples will continue to seek to participate in international commercial surrogacy arrangements.

 

I think it is undeniable that some of these arrangements have already led, and will continue to lead, to the exploitation of the surrogate involved. There have also been very public examples of such arrangements where the child involved has been abandoned.

 

But I also believe that there are other examples where no such exploitation has taken place, and that the arrangement has demonstrably been to the benefit of all parties concerned, including the parents, the surrogate and the child(ren).

 

Given this, there are a range of options that could be explored, including the introduction of ‘mutual recognition’ laws, where, provided appropriate safeguards and oversight exist, the commercial surrogacy schemes of specific countries are deemed to be accepted under Australian law. However, I will leave it to experts in this area to provide submissions on how such options might be drafted.

 

What I do want to comment on is the approach of Queensland, New South Wales and the Australian Capital Territory in criminalising those people who currently engage in international commercial surrogacy arrangements.

 

While, as indicated above, I understand the motivations behind such prohibitions, I question whether in practice they have been successful. Specifically, it is my understanding that individuals and couples from all three jurisdictions continue to engage in international commercial surrogacy.

 

Even if the overall number who do so has been reduced from before the respective bans were introduced (which may not be verifiable, and therefore may or may not be true), there are nevertheless negative consequences for children who are born through such arrangements.

 

This can include increased uncertainty of their legal parentage when their families have returned to Queensland, NSW and the ACT, as well as the obvious risk of criminal sanctions being imposed on their primary caregiver(s) were the international commercial surrogacy arrangement involved to come to the attention of authorities. As a general principle, it is difficult to see how criminalising the parents involved in such cases would benefit the child(ren).

 

In this context, and given the laws in all three jurisdictions have been in operation for some time, I believe it would be useful for Queensland, New South Wales and the Australian Capital Territory to specifically review their criminalisation of international commercial surrogacy arrangements, including the potential detriment of these policies on the children born as a result of such arrangements.

 

Recommendation 4: The Committee should recommend that states and territories that have introduced criminal sanctions for people engaging in international commercial surrogacy arrangements should review the effectiveness of these laws, including investigating their impact on the children born as a result of these arrangements.

 

Thank you again for the opportunity to make a submission to this inquiry. I can be contacted at the details provided with this submission should the Committee wish to obtain additional information, or to seek clarification of any of the above.

 

Sincerely

Alastair Lawrie

 

 

[i] Dempsey, D, “Same-sex parented families in Australia”, Child Family Community Australia, Research Paper No. 18, 2013.

[ii] Crouch, S, Waters, E McNair, R, Power, J, Davis, E, “Parent-reported measures of child health and wellbeing in same-sex parented families: a cross-sectional survey”, BMC Public Health, 21 June 2014.

[iii] ACT (Parentage Act 2004, s45), NSW (Surrogacy Act 2010, s11) and Queensland (Surrogacy Act 2010, s54).

[iv] Submission on Review of the NSW Surrogacy Act 2010, April 23 2014.

[v] Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology Stage 2, September 17 2015.

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology Stage 2

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Update:

 

The updated Ethical guidelines on the use of assisted reproductive technology were released by the NHMRC in April 2017.

 

Pleasingly, they made some improvements both to the previous guidelines and to the draft revised guidelines that had been released for consultation. However, they did not address all of the points made in my submission (see original post, below).

 

First, they do not include a stand-alone ethical principle of non-discrimination, retaining it as only one element of principle 7 (“Processes and policies for determining an individual’s or a couple’s eligibility to access ART services must be just, equitable, transparent and respectful of human dignity and the natural human rights of all persons, including the right to not be unlawfully or unreasonably discriminated against”).

 

Second, on the other hand they did update the discussion of this principle on page 26 to substitute sexual orientation for sexual preference, and to add new grounds of gender identity and intersex status. Which is certainly an improvement from the original guidelines, although it would be better for the latter attribute to be replaced with sex characteristics, as called for in the March 2017 Darlington Statement.

 

Third, disappointingly but also somewhat expectedly, the NHMRC did not overturn the ethical prohibition on commercial surrogacy, something I continue to see as a necessary harm reduction initiative to limit the possible exploitation of women in overseas countries.

 

Fourth, the guidelines continue to allow staff members to refuse to provide ART procedures on the basis of their conscientious objection: “A member of staff or a student who expresses a conscientious objection to the treatment of an individual patient or to an ART procedure is not obliged to be involved in that treatment or procedure, so long as the objection does not contravene relevant anti-discrimination laws and does not compromise the clinical care of the patient…” Which means the laws of all state and territories will need to be reviewed to ensure discrimination against LGBTI people accessing ART services is specifically prohibited.

 

Fifth, and perhaps most concerningly, the NHMRC has left the door slightly ajar to the sex selection of embryos – something that has specific dangers, right now, for intersex embryos, sets a dangerous precedent for possible selection against diverse sexual orientations and gender identities in the future, and reinforces negative gender stereotyping more broadly.

 

While the NHMRC has retained the existing prohibition on sex selection (“8.14 Sex selection techniques may not be used unless it is to reduce the risk of transmission of a genetic condition, disease or abnormality that would severely limit the quality of life of the person who would be born”), they have also stated this situation could change in the future:

 

“despite AHEC’s majority view that there may be some circumstances where there is no ethical barrier to the use of sex selection for non-medical purposes, paragraph 8.14 applies until such time that wide public debate occurs and/or state and territory legislation addresses the practice.”

 

Any such moves will need to be resisted.

 

Sixth, and finally, the NHMRC address some, but not all, of the points raised by OII Australia (now Intersex Human Rights Australia) and endorsed in my submission, including:

 

  • The guidelines do recommend the provision of information and counselling to prospective parents where “clinics should promote an environment of positive acceptance and non-discrimination”, but
  • The guidelines do not specifically rule out the use of pre-implantation genetic testing to prevent the births of intersex babies.

 

Original Post:

 

Project Officer – ART Public Consultation

Ethics and Governance Section

Evidence, Advice and Governance

National Health and Medical Research Council

GPO Box 1421

CANBERRA ACT 2601

ethics@nhmrc.gov.au

Thursday 17 September 2015

Dear Project Officer

ETHICAL GUIDELINES ON THE USE OF ASSISTED REPRODUCTIVE TECHNOLOGY IN CLINICAL PRACTICE AND RESEARCH

Thank you for the opportunity to provide a further submission to the National Health and Medical Research Council (NHMRC) review of Part B of the Ethical guidelines on the use of assisted reproductive technology in clinical practice and research, 2007 (the ART guidelines).

The following submission builds on my earlier submission, in April 2014, to this review (a copy of which is available here: https://alastairlawrie.net/2014/04/20/submission-on-nhmrc-review-of-ethical-guidelines-for-assisted-reproductive-technology/ ).

Overall, while I note that there have been some positive outcomes from the previous round of consultation – including the recognition in para 5.1.2 that “[c]linics must not accept donations from any donor who wishes to place conditions on the donation that the gametes are for the use only by individuals or couples from particular ethnic or social groups, or not be used by particular ethnic or social groups”, and the revised approach to transmissible infections/infectious disease at para 5.2.5  – there remain a range of areas where the ART guidelines should be improved.

First, I believe that the ‘principles and values’ outlined on pages 12 and 13 of the draft ART guidelines should include a specific principle of Non-Discrimination, and that the explanation for this principle should explicitly acknowledge that there should be no discrimination on the basis of sexual orientation, gender identity or intersex status in the provision of assisted reproductive technology services.

Second, and on a related matter, in the chapter “Application of ethical principles in the clinical practice of ART”, the discussion under point 3.5 on page 15 should be updated to reflect contemporary best practice.

Specifically, the sentence “[t]here must be no unlawful or unreasonable discrimination against an individual or couple on the basis of:

  • race, religion, sex, marital status, sexual preference, social status, disability or age”

reflects out-dated terminology and does not recognise all necessary groups.

The term ‘sexual preference’ should be replaced by ‘sexual orientation’, and the additional terms ‘gender identity’ and ‘intersex status’ should be added, to ensure that all members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community are protected from discrimination, and also to ensure that the ART guidelines are consistent with the protected attributes covered under the Sex Discrimination Act 1984.

Third, consistent with my previous submission, I disagree with the discussion under point 3.6 on page 16 regarding commercial surrogacy.

In particular, I do not support the blanket statement that “[i]t is unethical for individuals, or couples, to purchase, offer to purchase or sell gametes or embryos or surrogacy services” or the equally unequivocal blanket ban at para 8.7.1 (“[c]linics and clinicians must not practice, promote or recommend commercial surrogacy, nor enter into contractual arrangements with commercial surrogacy providers.”)

As outlined previously, I believe that the Australian Law Reform Commission (ALRC) should be asked to investigate the issue of commercial surrogacy, including consideration of what a best practice scheme would look like, before determining whether all commercial surrogacy services should be deemed unethical and therefore illegal.

From my previous submission:

“While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with such a broad-sweeping and all-encompassing statement against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

 Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

 However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, especially in developing countries and/or countries which do not closely regulate surrogacy arrangements.

 It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation.

 I do not expect the review process considering these Guidelines to come to a conclusion about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest what a domestic commercial surrogacy scheme would look like.

 However, I do believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

 The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).

 I believe that such a debate, informed not just by a practical proposal but also by the real-world consequences of the current ban, is vital before we can truly come to grips with and possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.”

Fourth, I continue to oppose ‘Conscientious objection’ provisions (under point 3.7 on pages 16 and 17) that would allow a member of staff or student to refuse to treat an individual or couple on the basis of that person’s sexual orientation, gender identity or intersex status, or on their relationship status.

The refusal to provide a medical service on these grounds is, and always should be considered, unethical.

Again, from my previous submission:

“While I note that the provision of ART services may, for some staff members of students, raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows for conscientious objections even when such objections are themselves unethical.

 For example, the provision as drafted would allow an individual member of staff to refuse to provide ART services to a person on the basis of that person’s sexual orientation, gender identity or intersex status (if that person believed that ART services should not be provided to such persons) or on the basis of relationship status (if the person believed that only ‘opposite-sex’ married persons should have access to ART).

 With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue introduction of federal anti-discrimination protections in 2013) and of different relationship statuses (including the 2008 reforms to federal de facto relationship recognition), none of these objections – while potentially genuinely held by the individual – should be allowed as the basis for refusing to provide ART services. Nor should conscientious objections on the basis of any of sexual orientation, gender identity, intersex status or relationship status be recognized as acceptable or ‘ethical’ in the context of these Guidelines.

 If [point 3.7] is to be retained in the Ethical Guidelines, I recommend that it be amended to specifically note that conscientious objections do not apply, and are not accepted, with respect to the sexual orientation, gender identity, intersex status or relationship status of the intended recipient of the ART procedure or service.”

Fifth, in response to the discussion of “Sex selection for non-medical purposes” on pages 55 to 58 of the consultation draft, I submit that sex selection should not be allowed on these grounds.

There are three reasons for this:

  1. Based on evidence from the submission of OII Australia (Organisation Intersex International Australia, see their submission here: https://oii.org.au/29939/nhmrc-genetic-selection-intersex-traits/ ), it appears that sex selection is already being used to select against embryos on the basis of intersex variations. This practice is entirely unethical, intending to prevent the birth of children on the basis of where they sit along the natural spectrum of sex variation, and should cease.
  2. Allowing sex selection for non-medical purposes also sets a negative precedent, opening the door in future to selecting for (or more likely against) embryos on the basis of gender identity or even sexual orientation if and when genetic testing emerges which can accurately predict the existence of, or even pre-disposition towards, these traits.
  3. As acknowledged by the consultation paper on page 55, there is a strong “possibility that sex selection for non-medical reasons may reinforce gender stereotyping, and create pressure on the person born to conform to parental expectations regarding gender.” This practice will be particularly harmful towards children born as a result of such procedures where those children express a different gender identity to that which the parents ‘choose’, and also may negatively impact children who are homosexual or bisexual.

On this basis, I do not believe that sex selection is appropriate in any of the case studies presented on pages 56, 57 and 58, and submit that it should not be included as an ‘ethical option’ under the ART guidelines.

Sixth, and finally, I would like to express my support for the submission by OII Australia to this consultation. Specifically, I endorse their recommendations that:

  • “Information giving and counselling must include non-pathologising information, aimed at supporting a philosophy of self-acceptance”
  • Pre-implantation genetic testing (PGT) should not be used to prevent the births of intersex babies and that
  • “The practice of sex selection should not be permitted for social, child replacement, or family balancing purposes.”

Thank you again for the opportunity to provide a submission to this consultation process. Please do not hesitate to contact me, at the details below, should you which to clarify any of the above, or to seek additional information.

Sincerely,

Alastair Lawrie

Submission on Review of NSW Surrogacy Act 2010

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The NSW Attorney-General’s Department is currently reviewing the Surrogacy Act 2010, legislation which allowed equal access to altruistic surrogacy within NSW, but made a criminal offence, with a penalty of to 2 years’ imprisonment, of entering into commercial surrogacy arrangements both within NSW and overseas.

Submissions are due by 30 April (next Wednesday), and full details about the review can be found here: <http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_consultation/lpclrd_stat_reviews.html?s=1810621881

As with the NHMRC review of the Ethical Guidelines re Assisted Reproductive Technology, this subject matter is complicated, and I am sure that some people reading this blog will disagree with some of my conclusions (particularly re commercial surrogacy). if that’s the case, then I encourage you to leave a comment below and/or write your own submission.

The Director,

Justice Policy

Department of Attorney General and Justice

GPO Box 6

SYDNEY NSW 2001

justice.policy@agd.nsw.gov.au

Wednesday 23 April

Dear Director,

SUBMISSION RE REVIEW OF SURROGACY ACT 2010

Thank you for the opportunity to provide my personal submission in response to the review of the NSW Surrogacy Act 2010.

As suggested by the terms of reference, this submission is separated into two parts: the first examines whether the policy objectives of the Act remain valid, while the second considers whether the terms of the Act remain appropriate for securing those objectives.

Part A: Do the policy objectives of the Surrogacy Act 2010 remain valid?

The review outlines that the policy objectives of the Surrogacy Act 2010 are to:

  • Protect the interests of children born as a result of surrogacy arrangements;
  • Provide legal certainty for parties to surrogacy arrangements, and
  • Prevent the commercialisation of human reproduction.

Overall, I believe that the first two of these policy objectives remain valid, while the third should be replaced with the policy objective “To prevent the exploitation of people for the purposes of human reproduction”. I also believe that an additional policy objective should be added: “To recognise and support diversity in family structures and relationships.”

Protect the interests of children born as a result of surrogacy arrangements

As with likely all other people making submissions to this review, I strongly support the retention of this policy objective. I also agree with the inclusion of this objective as the primary Guiding Principle in section 3 of the Act: “[t]his Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.”

I note that the best interests of children born through surrogacy are protected and supported by the equal treatment of all people, irrespective of sexual orientation, gender identity and intersex status, because, as all reputable research has shown, none of these characteristics are relevant in determining whether an individual or couple will be a good, caring and loving parent(s).

The Surrogacy Act 2010 should be commended for not drawing any distinctions on the basis of these attributes, and the non-discriminatory nature of its operative provisions should be retained.

However, the role of the Act in affirming the diversity of family structures and relationships that already exist in NSW could be strengthened by the elevation of a principle reflecting this reality in a new stand-alone policy objective.

Such a possibility was considered during the second reading speech debate in 2010[1], as well as in the Standing Committee on Law and Justice’s 2009 Report entitled ‘Legislation in Altruistic Surrogacy’, which helped to inform development of the Act.

I believe that a new policy objective – namely, “To recognise and support diversity in family structures and relationships” – should be added to the Act to highlight the non-discriminatory approach of the legislation and the fact that all people can be good parents, irrespective of sexual orientation, gender identity or intersex status.

Recommendation 1: A new policy objective should be added to the Surrogacy Act 2010– “To recognise and support diversity in family structures and relationships.”

Provide legal certainty for parties to surrogacy arrangements

Not only do I believe that this policy objective remains valid, but I also believe that the Act, and its framework for transfer of parentage of children born through surrogacy arrangements, is largely successful in achieving this outcome. Therefore, this policy objective should be retained.

Prevent the commercialisation of human reproduction

I do not support this policy objective, and believe it should be replaced with a new policy objective: “To prevent the exploitation of people for the purposes of human reproduction.”

By way of explanation, I believe the inclusion of the current policy objective is, to some degree, an attempt to address the issue of potential reproductive exploitation (especially of women), but that it confuses the means (a ban on commercial reproduction, including surrogacy) with the ends (preventing reproductive exploitation). It is the ends that should be reflected in the policy objectives rather than the means.

Further, I believe that the question whether commercial surrogacy is and always will be wrong, in every possible circumstance, is complex, and one about which different people, well-motivated and passionate about human rights and welfare, can and do reach different conclusions. However, one conclusion about which I hope all people would agree is that people, and especially women, should not be exploited for their reproductive capabilities.

Personally, I do not feel confident in saying that every possible arrangement, between a birth mother and the intended parent(s) of the child, is inherently wrong – and wrong to the point where it should be criminalised – simply because of the exchange of money in addition to those which cover the birth mother’s costs.

Nor do I necessarily believe that the nature of a surrogacy arrangement automatically and fundamentally changes, from one which is recognised and supported in legislation (altruistic surrogacy), to one which is not only prohibited but attracts a maximum penalty of two years’ imprisonment (commercial surrogacy), because of the exchange of that money.

Of course, I am cognisant of the fact that the introduction of financial ‘rewards’ to the already ethically-complex area of surrogacy arrangements carries with it significant risks. Chief among those are the risk that people, and especially the women acting as surrogate mothers, will be exploited for their reproductive capabilities.

However, I also believe there are other ways in which people can be exploited for their reproductive capabilities (such as through emotional and/or familial pressure). Indeed, the Surrogacy Act 2010 already contains a range of safeguards that have nothing to do with commercialisation, but are directed at preventing exploitation (for example, the requirement for an independent counsellor’s report to verify that the birth mother has an “understanding of the social and psychological implications of the making of a parentage order” and “whether any consent given by the birth parent or parents to the parentage order is informed consent, freely and voluntarily given” – subsections 17(3)(a) and (f)).

In my view, it is the prevention of exploitation that should be the policy objective in this area, rather than commercialisation per se. This new objective should then be used to guide whether and, if so, how commercial surrogacy arrangements should be allowed (see discussion in part B).

Recommendation 2: The policy objective “To prevent the commercialisation of human reproduction” should be replaced with a new policy objective “To prevent the exploitation of people for the purposes of human reproduction.”

Part B: Do the terms of the Surrogacy Act 2010 remain appropriate to secure those objectives?

For the most part, the provisions of the Surrogacy Act 2010 work well in protecting the interests of children born as a result of surrogacy arrangements and in providing legal certainty for parties to surrogacy arrangements. As indicated in Part A, I also believe that the non-discriminatory way in which the legislation has been drafted could be enhanced further by the addition of a new policy objective (“To recognise and support diversity in family structures and relationships”).

However, I believe that there is a clear divergence in determining whether the provisions of the Act remain appropriate depending on which of the two alternative policy objectives discussed in Part A (‘prevent commercialisation’ or ‘prevent exploitation’) is adopted.

For example, if the over-arching goal of the legislation remains to prevent commercialisation in any form, then the ban on commercial surrogacy in section 8 (which includes a maximum penalty of 1000 penalty units or 2 years’ imprisonment, or both, for those people who are in contravention) would clearly still be appropriate.

The prohibition on commercial surrogacy arrangements entered into overseas by people ordinarily resident or domicile in NSW, as outlined in the ‘geographical nexus for offences’ provision in section 11, would also remain a valid attempt to secure the objective of preventing commercialisation.

However, if the policy objective of preventing commercialisation is actually seen as a means to the end of preventing exploitation (which I believe it is), or indeed, if it were to be replaced with the explicit policy objective of preventing exploitation of people and especially women for their reproductive capabilities, then we are forced to consider how these provisions are currently operating, and their impact on people both in NSW and overseas.

I suspect that, even before the Surrogacy Act 2010 was introduced, there were few, if any, commercial surrogacy arrangements entered into within NSW, and that this situation would remain the case today.

I also believe that there is evidence that the number of overseas commercial surrogacy arrangements was growing at the time of the legislation’s passage, and that, since its introduction, the number of these arrangements entered into by people resident or domiciled in NSW has likely decreased. This could be seen as evidence that the ban has reduced exploitation.

However, I also believe that there is sufficient anecdotal and other evidence that some overseas commercial surrogacy arrangements entered into by people living in NSW continue. The overwhelming desire for some individuals or couples to become parents, together with the low numbers of ‘stranger’-child adoptions, both within Australia and internationally, means that this option continues to be at or near the top of the list of possible routes to parenthood. The criminal penalty attached to section 8 is unlikely to deter such people.

The result of this is that, while some individuals or couples may choose (or have the money to choose) commercial surrogacy arrangements in countries with strong regulation and low economic disadvantage, which at least reduces the possibility of exploitation, others opt for (or are financially restricted to choosing) countries with little or no regulation, as well as higher economic inequality or disadvantage than Australia, thereby significantly increasing the risks of exploitation of the women acting as surrogate mothers.

Thus, while the ban on commercial surrogacy may be effective in preventing the exploitation of women within Australia, I believe it has to be acknowledged that it is not entirely successful in preventing the potential for exploitation of women in other countries.

In this context, we are forced to consider whether there are alternative approaches to the question of commercial surrogacy that could lower the overall level of exploitation of all women.

At least one option, which should at least be considered, would be legalising commercial surrogacy arrangements within NSW, and placing them within a tightly regulated system with the ability to be overseen by appropriate domestic agencies, while at the same time continuing the prohibition on commercial surrogacy arrangements entered into overseas.

This framework – domestic legalisation and overseas ban – arguably may have the best potential to reduce the overall level of reproductive exploitation of women.

However, it is difficult to consider the respective advantages or disadvantages of such a framework in the absence of a proposal outlining exactly how a domestic commercial surrogacy scheme could operate. I believe it is nearly impossible to compare the known harms of surrogate exploitation in (some) overseas countries, with the hypothetical risks of exploitation under an unknown domestic commercial surrogacy scheme.

For this reason, I believe that the NSW Law Reform Commission or similar body should be given the responsibility to consider this issue, but, rather than recommend whether commercial surrogacy should be legalised or not, they should instead design what a ‘model’ domestic commercial surrogacy scheme would look like, with the guiding principle of minimising the risks of exploitation.

This model could then be used as the basis for a genuine and sustained debate, in the community, the media and amongst politicians, about whether the current system (a blanket ban), or a system which allows for tightly-regulated domestic commercial surrogacy, is the best way to reduce the risk of exploitation of all women, and not just those living in NSW.

Of course, it may be that it is impossible to design a domestic commercial surrogacy scheme that sufficiently reduces the risks of exploitation of people (and especially women) for their reproductive capabilities.

It may also be that, after this process, the majority of people still believe that the ‘commercialisation’ of human reproduction is always wrong, and that commercial surrogacy should always be illegal.

However, given we are aware that at least some overseas commercial surrogacy arrangements continue to occur, and appear likely to continue well into the future, I believe it is incumbent upon us to consider whether there are any alternatives to the current regulatory approach and, after considering those alternatives, decide what is the most appropriate way “To prevent the exploitation of people for the purpose of human reproduction.”

Recommendation 3: The NSW Law Reform Commission, or similar body, should be asked to design a ‘model’ framework for domestic commercial surrogacy arrangements, with a guiding principle to minimise the risks of the exploitation of people for the purpose of human reproduction.

Should you require additional information, or to clarify any of the recommendations included in this submission, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

[1]http://www.parliament.nsw.gov.au/prod/parlment/NSWBills.nsf/0/71c024816771a264ca2577c100195683/$FILE/LC%2010210.pdf

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology

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The Australian National Health and Medical Research Council is currently reviewing Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

These Guidelines provide advice on a wide range of matters, including whether and if so in what circumstances someone can refuse to provide an ART procedure, and whether someone can direct that their gametes or embryos may only be used (or not used) by particular ethnic or social groups. They also currently include a prohibition on commercial surrogacy.

I have made a submission to the inquiry – which I reproduce below – which, as you can tell, largely argues for LGBTI equality, but also adopts a position on commercial surrogacy which I know some might find controversial (and if people do disagree with me I encourage you to leave a comment below).

I believe as many people as possible should make a submission to the review, because it should be informed by voices from across the community, including the LGBTI community (and that includes people who disagree with me on commercial surrogacy too). The details for the review, and how to make a submission, can be found at the following link: <http://consultations.nhmrc.gov.au/public_consultations/assisted_reproductive The closing date is Wednesday 30 April (ie ten days away), so time to get cracking.

Thanks for reading, and as always, let me know what you think.

Project Officer – Assisted Reproductive Technology

Health & Research Ethics Section

National Health and Medical Research Council

GPO Box 1421

CANBERRA ACT 2601

ethics@nhmrc.gov.au

Dear Project Officer, 

Review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007

Thank you for the opportunity to make a submission on the review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

I do so as an ordinary member of the public, without any special qualification or expertise in assisted reproductive technology (ART), but with a strong interest and passionate commitment to the legal and substantive equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

I do not propose to answer all 60 of the questions contained in the public consultation document on the NHMRC website, but will instead focus my comments on those issues which are most relevant to LGBTI equality, as well as to the issue of commercial surrogacy.

In particular, I would like to make comments about the following five areas:

  1. Conscientious Objections
  2. Transmissible Infections
  3. Unknown but Directed Donations
  4. Selection for Particular Characteristics
  5. Commercial Surrogacy
  1. Conscientious Objections

My first concern is about the breadth of the description of conscientious objections in paragraph 5.9 (page 12 of the consultation document). Specifically, this paragraph provides that “[i]f any member of staff or student expresses a conscientious objection to the treatment of any individual patient or to any ART procedures conducted by the clinic, the clinic must allow him or her to withdraw from involvement in the procedure or program to which he or she objects.”

While I note that the provision of ART services may, for some staff members of students, raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows for conscientious objections even when such objections are themselves unethical.

For example, the provision as drafted would allow an individual member of staff to refuse to provide ART services to a person on the basis of that person’s sexual orientation, gender identity or intersex status (if that person believed that ART services should not be provided to such persons) or on the basis of relationship status (if the person believed that only ‘opposite-sex’ married persons should have access to ART).

With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue introduction of federal anti-discrimination protections in 2013) and of different relationship statuses (including the 2008 reforms to federal de facto relationship recognition), none of these objections – while potentially genuinely held by the individual – should be allowed as the basis for refusing to provide ART services. Nor should conscientious objections on the basis of any of sexual orientation, gender identity, intersex status or relationship status be recognized as acceptable or ‘ethical’ in the context of these Guidelines.

If paragraph 5.9 is to be retained in the Ethical Guidelines, I recommend that it be amended to specifically note that conscientious objections do not apply, and are not accepted, with respect to the sexual orientation, gender identity, intersex status or relationship status of the intended recipient of the ART procedure or service.

  1. Transmissible Infections

My second concern also relates to the breadth of provisions contained in the Guidelines, in this case paragraph 6.4 (titled Minimise risk of infection, on page 19 of the consultation document). Specifically, sub-paragraph of this section provides that “[c]linics should not accept donations from people at an increased risk of transmissible infections”.

While I acknowledge the importance of reducing the risk of transmission of communicable diseases, I believe that the wording of this sub-paragraph allows for potential misinterpretation or misapplication to prohibit donations from all people from a particular demographic group who may be over-represented in notifications for a transmissible infection (for example, men who have sex with men, who are currently disproportionately represented in HIV notifications in Australia).

This level of prohibition – at demographic group level – would ignore the particular behaviours or characteristics of the individual, which in practice make that individual more or less susceptible to transmission.

My concern is this area is founded on the ongoing exclusion of all men who engage in same-sex sexual intercourse from donating blood, irrespective of their particular behaviours or characteristics and therefore actual risk.

It is my view that any risk assessment, if deemed necessary at all, should be performed at individual level, rather than demographic group, and that the Guidelines should make this differentiation explicit in this section.

I would also note that the requirement contained in sub-paragraph 6.4.2 (that “[a]ll donors of gametes should undergo appropriate infection control surveillance”) is possibly all that is necessary to be included in this section in any event. If the individual concerned is being tested for relevant infections, and appropriate monitoring is being undertaken, then sub-paragraph 6.4.1 may in fact already be redundant.

  1. Unknown but directed donations

This concern relates to the paragraphs addressing ‘unknown but directed donation’ of both gametes (paragraph 6.9, at page 20 of the consultation document) and embryos (paragraph 7.6, at page 29).

I am strongly opposed to the recognition, even under Ethical Guidelines, of any ability of donors to restrict the use of their gametes or embryos to “certain individuals, such as those from a particular ethnic or social group.”

This creates the possibility of donors restricting the use of their gametes or embryos to people of a particular sexual orientation or gender identity (for example, to cisgender heterosexual people), and therefore to excluding other people on the basis of their sexual orientation, gender identity or intersex status. It also appears that this would allow for similar distinctions to be made on the basis of relationship status.

I note that paragraph 6.9 highlights that “[t]his type of directed donation is illegal in some jurisdictions.” I believe that it should be made illegal in all jurisdictions. The principle of non-discrimination, including non-discrimination against LGBTI people, should trump any ability of potential donors to discriminate against people on the basis of sexual orientation, gender identity, intersex status of relationship status.

Even where ‘unknown but directed donations’ are not made illegal under law, the placing of such restrictions on the donation of gametes or embryos should not be respected through these Guidelines (as they currently are in both paragraphs 6.9 and 7.6, which conclude by saying “[i]n the remaining states and territories, clinics must not use the gametes/embryos in a way that is contrary to the wishes of the donor.”)

At this point I note that there are two options to implement such a recommendation – and that is to either override any expressed discriminatory preference of the donor and provide the gametes/embryos to others irrespective of whatever qualification was sought, or to reject all such donations and ensure that their gametes/embryos are not used. I am comfortable with either outcome, as they both satisfy the principles of equality/non-discrimination, although I highlight the fact that the former would allow more gametes/embryos to be used by individuals or couples who may require them.

  1. Selection for Particular Characteristics

Paragraph 11.1 of the Ethical Guidelines (headed Do not select sex for non-medical purposes, on page 48 of the consultation document) states that “sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition”. I support the inclusion of this principle in the Guidelines.

However, I note that, in future, there exists the potential that research may create the possibility of determining the likely (or at least increased predisposition towards a specific) sexual orientation or gender identity of a child born as a result of assisted reproductive technology. I also note that, for certain groups within the umbrella term intersex (such as congenital adrenal hyperplasia, and androgen insensitivity syndrome) these diagnostic tests are already a possibility, while additional groups within intersex may be able to be determined in the future.

Given that the incredible diversity of sexual orientation (including heterosexuality, homosexuality and bisexuality), gender identity (recognizing those who are cisgender and those who are transgender) and sex (including intersex status) of human life is natural, and that all people, including LGBTI people, are equal, and should be treated as such, I believe the Guidelines should also include a prohibition on the selection of reproductive material on the basis of (likely or prospective) sexual orientation, gender identity or intersex status.

While for sexual orientation and gender identity, this scenario – the screening of embryos for such characteristics – may ultimately prove to be some years or even decades into the future, I believe that it is vital to lay down this signpost, that such discrimination will not be tolerated, now, thereby setting a precedent for if and when it is ever required. In the case of intersex status, such guidelines are necessary now, to support and recognize sex diversity.

  1. Commercial Surrogacy

Finally, I note that paragraph 13.1 of the Ethical Guidelines (on page 52 of the consultation document) states that “[i]t is ethically unacceptable to undertake or facilitate surrogate pregnancy for commercial purposes.”

While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with such a broad-sweeping and all-encompassing statement against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, especially in developing countries and/or countries which do not closely regulate surrogacy arrangements.

It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation.

I do not expect the review process considering these Guidelines to come to a conclusion about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest what a domestic commercial surrogacy scheme would look like.

However, I do believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).

I believe that such a debate, informed not just by a practical proposal but also by the real-world consequences of the current ban, is vital before we can truly come to grips with and possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.

Thank you for taking my submission into consideration.

Sincerely,

Alastair Lawrie

20 April 2014