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Australian parliamentary committee calls for national surrogacy regulation

09 May 2016

By Antony Blackburn-Starza

Appeared in BioNews 850

A federal parliamentary committee in Australia has recommended that commercial surrogacy should remain illegal in the country, but that altruistic surrogacy should be regulated at a national level. 

The House of Representatives Standing Committee on Social Policy and Legal Affairs has said that commercial surrogacy – defined as being where the surrogate is remunerated for financial gain – could lead to economic pressure on the surrogate and the expectations of intended parents undermining a surrogate's free and informed consent. However, it did suggest that providing 'appropriate reimbursement' to surrogates could be reasonable.

Its report recommended that Australian surrogacy laws should be harmonised and that altruistic surrogacy be regulated at a national level. At present, surrogacy in Australia is mostly regulated by individual states. While they all prohibit commercial surrogacy, the laws dealing with altruistic surrogacy can vary in scope and application. This can make it difficult for some intended parents to find a surrogate and means that checks and protections are inconsistent across the country, the committee noted.

The committee's inquiry into surrogacy, entitled 'Surrogacy Matters', was adopted at the request of the Attorney-General in December 2016 to consider harmonising surrogacy laws, international surrogacy and the provision of information to those engaged in surrogacy. Its report acknowledges that surrogacy is a 'complex field of examination', and regulation must deal with the fact that today children are born from varied sources of genetic material.

'Society now recognises many different forms of blended and adoptive families that are not based solely on genetic connections, expanding the models of family formation and familial relationships,' the report states.

In an effort to produce a national model to regulate surrogacy, the committee has asked the Australian Law Reform Commission (ALRC) to look into developing a draft legal framework, with particular consideration being given to the best interests of the child, legal clarity around resulting parent–child relationships, and ensuring that surrogates can give free, informed consent and are free from exploitation.

It has also asked the ALRC to consider if measures including mandatory counselling, background checks, the provision of legal advice, reimbursements for surrogates and the creation of a closed register of surrogates and intended parents, should be introduced.

In addition, the committee has asked the ALRC to look into whether a child's birth certificate should contain the details of all parents, including the gestational, genetic and intended parents, and record that the birth followed a surrogacy arrangement.

The report follows a number of highly publicised overseas surrogacy arrangements, including that of Nareubet Minjaroen, known as 'Baby Gammy', born to a Thai surrogate and whom his Australian intended parents had allegedly left behind – a version of events disputed by the couple and a recent Australian court decision (see BioNews 765 and 847).

'A number of high-profile offshore surrogacy cases involving Australians have highlighted these ethical issues, the possibilities for exploitation, and the importance of ensuring that at all times it is the best interests of the child that is paramount in any regulatory response to surrogacy,' the report states.

In respect of offshore surrogacy arrangements, the committee said that such arrangements should be subject to 'detailed scrutiny'. Recommendations include conducting an audit of host countries to see if practices are consistent with an Australian national model, and also screening Australians wanting to return with a child born to an oversees surrogate to ensure that no national or international rules relating to surrogacy have been breached.

It also urged the Australian Government to promote the development of an international convention dealing with surrogacy, currently under consideration at the Hague Conference on Private International Law.

Meanwhile, speaking at a meeting organised by the Surrogacy Law Reform project in London last week, Baroness Mary Warnock, chair of the committee whose 1984 report led the introduction of regulation for assisted conception, said that the UK's position on surrogacy was now 'outdated' and needed to change.

Rejecting commercial surrogacy, Baroness Warnock also told BBC Radio 4's Woman's Hour that 'the birth certificate ought to tell the truth' and, rather than naming the donor or surrogate, it should state if a child has been born through gamete donation or surrogacy. Otherwise it leaves it open for the parents to 'deceive' the child about who their biological mother and father is, she said. 

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