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.
House of Representatives Standing Committee on Social Policy and Legal Affairs
PO Box 6021
Canberra ACT 2600
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:
- the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
- 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]
- 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.
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:
- Surrogacy arrangements, and especially commercial surrogacy arrangements, contain a risk of exploitation of the surrogate
- The risk of exploitation significantly increases in the absence of appropriate regulatory oversight
- 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
- 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.
[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.