As a result of the recommendations of the South Australian surrogacy review, undertaken by the South Australian Law Reform Institute (SALRI), the South
Australian Government has prepared a draft Surrogacy Bill 2018, for
consultation, which picks up the recommendations of SALRI's report.
The draft Bill is likely to be debated in February or March 2019.
SALRI said:
“SALRI
received divergent views and consultation including support for a commercial
system of surrogacy in Australia and opposing any form of surrogacy. SALRI reiterates that both options of a
commercial system of regulated surrogacy in banning or precluding any form of
surrogacy in South Australia are not within its terms of reference. SALRI also notes that the result of both its
consultation and research supports an intermediate approach within these two
polarised views as the most appropriate way forward. SALRI does not support a system of regulated
commercial surrogacy in South Australia in light of the well documented
concerns that commercial surrogacy gives rise to. An order SALRI supports seeking to preclude
or ban non-commercial surrogacy in South Australia and any such option is both
inappropriate and unrealistic. SALRI
also reiterates the apparent rationale of the present law throughout Australia
is to allow to facilitate lawful surrogacy within Australia and deter or
discourage recourse to unlawful surrogacy within Australia especially overseas
commercial surrogacy.”
SALRI called for a
national and uniform scheme concerning surrogacy but:
“This
is likely to prove a long term process and, in the interim, it is crucial that
the State regulatory framework for surrogacy is as effective as possible. SALRI supports a suitable regulatory
framework for South Australia that maintains the (admittedly often tenuous)
distinction between commercial and non-commercial surrogacy and clarifies and
improves the current system to most appropriately allow and facilitate lawful
domestic surrogacy within Australia for South Australians but discourages and
deters recourse to unlawful surrogacy, especially offshore commercial
surrogacy. It is unrealistic, in light
of the diversity of modern families and the dramatic advances in reproductive
technology, to expect that the law can cover every conceivable surrogacy
situation that might arise.
Nevertheless, SALRI considers that the framework which it has
recommended is the most effective and appropriate to recognise and respect the
interests of all parties, but crucially to protect the best interests of the
child. This must always be the primary
or paramount factor of any system.”
The review undertaken by
the South Australian Law Reform Institute was released in mid-November. Its recommendations are:
Recommendation 1
SALRI recommends that any
legislative reform to accompany a new surrogacy framework should use the
opportunity to move towards national consistency and, as part of this process,
the problematic terms such as “commissioning
parent” (to be replaced with “intending
parent”) and, as far as practicable, the term “altruistic”, should be replaced or avoided.
Comment
The report said that it
had heard widely in consultation that the term commissioning parents is considered inappropriate by some parties
as it imparts strong commercial undertones into a non-commercial family
arrangement. Most, if not all, “commissioning parents” refer to
themselves as “intending parents”. The surrogate mothers that SALRI spoke to
also used the term “intending parents”
when describing their experiences with surrogacy.
The report quoted me as
saying:
“Commissioning
parents sound as though they have bought a baby in the same way they might have
commissioned a ship or the purchase of a car or a refrigerator. It is in my view somewhat disrespectful of
them and of the process, which at its best is magical. These people intend to be the parents, and
hopefully with the making of an order, which should be termed a parentage
order, become the parents as a matter of law.”
Recommendation 2
SALRI recommends that, in
light of the likely delay of uniform (or at least consistent) national laws
being developed, South Australia should, as far as practicable, devise its laws
in relation to surrogacy until national laws are formulated, to ensure the
States laws are as effective as possible.
Recommendation 3
SALRI recommends that
South Australia, along with other States and Territories, resume efforts
towards a national consensus on this issue and to formulate a national uniform
scheme as a matter of the highest priority.
Recommendation 4
SALRI recommends that,
where necessary, give effect to recommendation 3 above, South Australia should
refer the jurisdictions of its powers in respect of surrogacy to the
Commonwealth and allow the Family Court to exercise jurisdiction in respect of
all aspects of the surrogacy at its earliest opportunity.
Recommendation 5
SALRI recommends that,
for ease of reference and application and accessibility, the current scheme for
surrogacy contained in Part 2B of the Family
Relationships Act 1975 (SA) be excised and replaced with a standalone Surrogacy Act for South Australia.
Recommendation 6
SALRI recommends that any
new Surrogacy Act should draw on Part
2B of the Family Relationships Act 1975 and
the Family Relationships (Surrogacy)
Amendment Bill 2017, notably as to the provisions set out in Part 5 of this
report.
Recommendation 7
SALRI recommends that the
practice of commercial surrogacy should remain illegal in South Australia, but
that domestic, non-commercial surrogacy agreements should be permissible in
certain specified circumstances.
Recommendation 8
SALRI recommends that,
under any Surrogacy Act and surrogacy
framework, the interests and human rights of all parties, namely the child born
as a result of the surrogacy, the surrogate mother and her partner and the
intending parents must be recognised and respected, but confirms that the
primary or paramount consideration, both before and after birth, should be the
best interests of the child.
Comment
In recommendations 8 and 9, I was quoted in the report:
“Mr
Page noted that ‘both ART and surrogacy generally have a myriad of complex
moral and ethical issues but surrogacy, whilst usually involving ART, is not a
medical process, but a legal process of transfer of parentage from the
surrogate (and her partner if any) to the intended parent or parents’. SALRI agrees with the view of Mr Page in
consultation that: ‘It is essential that there is appropriate regulation of
surrogacy in Australia within an appropriate human rights framework’ and there
is, and continues to be, appropriate regulation that respects the interests of
all parties.
SALRI accepts that any
regulatory framework for surrogacy should explicitly recognise the interests of
human rights of all parties (including the intended parents and the surrogate
mother and her partner (who is sometimes overlooked)), while ensuring that, as
Chief Justice Pascoe, Mr Adams and others have articulated, the paramount
consideration is the best interests of the child born as a result of the
surrogacy.”
Recommendation 9
SALRI recommends that any
Surrogacy Act should provide that the
court must be satisfied that the making of any parentage order in respect of a
child born as a result of surrogacy is in the best interests of the child and
there should be a necessary pre-condition to the making of a parentage order.
Recommendation 10
SALRI recommends that
there is a review of the operation and effectiveness of any new Surrogacy Act five years after its
commencement, given the complexities and rapid advances in the area of surrogacy
(both research wise and internationally).
Recommendation 11
SALRI recommends that any
new Surrogacy Act should contain the
following statutory guiding principles to apply in any decision in relation to
surrogacy, at both the pre-birth and post birth stage:
1. That
the best interests of the child are paramount and should be protected
(including the child’s safety and wellbeing and the child’s right to know about
their family and origins).
2. That
the surrogate mother is able to make a free and informed decision about whether
to act as a surrogate.
3. That
sufficient regulatory protections are in place to protect the surrogate mother
and the intending parents from exploitation.
4. That
there is legal clarity about the parent-child relationships that result from
the arrangement.
5. The
intervention of the law in the State in peoples’ private lives, with regard to
surrogacy, should be kept to a minimum.
6. Any
model should ensure that, at the outset, all parties are fully aware of their
rights and responsibilities (particularly in relation to the child) and such a
model should seek to avoid and resolve any legal dispute (if arising) between
the parties.
7. That
the surrogate mother has the same rights to manage her pregnancy and birth as
any other pregnant woman.
Recommendation 12
SALRI recommends that the
current role of the State Attorney-General introduced by the Family Relationships (Surrogacy) Amendment
Act 2015 (SA) with respect to surrogacy (including both the framework
and/or approved individual surrogacy agreements (including international
surrogacy agreements)) is inappropriate and should be removed.
Comment
SALRI said in its report:
“Many
participants, including Professor Keyes, Mr Page, Dr Allan and Chief Justice
Pascoe also raise concerns about how a State Attorney-General could effectively
and practically recognise international commercial surrogacy arrangements. It was noted that it would be very difficult,
if not effectively impossible, for a State Attorney-General to really know if
an international surrogacy arrangement was fair and equitable or
exploitative. Mr Page stated that it was
preferable for a court to be given this role and described the
Attorney-General’s power as ‘impractical’.
Mr Page noted:
“There would be an ever mounting pile of
information requested as to each surrogacy journey. The Minister, with respect, I presume is not
an expert on overseas jurisdictions, surrogacy agencies or IVF clinics. To properly discharge his or her role under
the legislation, the Minister would require a burdensome amount of information
and even then may not be satisfied as to whether it is an appropriate
jurisdiction, surrogacy agency or IVF clinic.”
SALRI agreed with those views:
“It
is no criticism of the expertise of the Attorney-General or their advisers but
a State Attorney-General lacks the role, capacity or expertise for such a
sensitive and specialised role as recognising international commercial
surrogacy agreements.”
Recommendation 13
SALRI recommends that the
framework introduced by the Family
Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy
be removed.
Recommendation 14
SALRI recommends that the
State Register of potential surrogate mothers introduced by the Family Relationships (Surrogacy) Amendment
Act 2015 (SA) be removed.
Comment
SALRI noted that:
“Mr
Page, drawing on his wide experience in surrogacy law, noted that there is a
need for surrogates and intending parents to be able to get in touch but no
surrogate mother would ever joint a State Register…Monica, an intending
surrogate and active member of online surrogacy networks said:
Surrogacy is complex and altruistic surrogacy
is all about relationships. Although a
register would attempt to facilitate easier matches with Intended Parents and
surrogates, it needs to not detract from the relationship that needs to be
built up between both parties. This
relationship is ultimately in the best interests of the future child. We need to maintain a relationship model, not
a transaction model…A surrogate offering to carry for a person/couple is a
gift, it cannot be asked for. To ensure
that the surrogate is the one to offer this gift, the surrogate needs to choose
which IPs she wants to carry for. Not
the other way around that the IPs choose the surrogate from a register.
Monica told SALRI that she thought the idea of a State
Register of surrogates was a ‘joke’. It
was ‘well-intentioned but doomed to fail’.
Monica said it had the things the ‘wrong way around’ as it created a
‘transactional’ rather than a ‘relationship’ based surrogacy model. She commented that it is a ‘surrogate shop
because it is not focusing on the relationship’ and ‘well-intentioned but
doomed to fail’ as it was impractical.
Monica saw it as a ‘surrogate shop where you can choose surrogates from’
when the applicable ‘currency’ should be time and love’.”
Recommendation 15
SALRI recommends that the
present law should be clarified to provide that any offence covering the act of
commercial surrogacy itself should include offering, encouraging, inducing or
assisting such an Act. This would
capture commercial introduction and brokerage in commercial advertising, but
not frustrate communication negotiation between the parties on a non-commercial
aspect, which is essential.
Comment
Under recommendation 15
there was a reference to the 2017 Bill that provided:
“A
person who, for payment or other consideration, negotiates or arranges or
obtains the benefit of a surrogacy arrangement on behalf of another is guilty
of an offence.
Maximum
penalty: imprisonment for 12 months.”
SALRI said:
“Mr
Page, Ms Redmond, Dr Oxlad and others raise concerns in consultation of the
proposed extension…arguably extends the scope of the offences too far and could
potentially impede the otherwise lawful work of professionals, including legal
practitioners and counsellors, necessary to achieve the broad purposes of the
regulatory scheme. Mr Page said:
“Whilst on its face, clause 10U(I) appears to
be substantially the same, why it is a considerable widening is that section
10H(I) refers to surrogacy contract whereas clause 10U(I) refers to surrogacy
arrangement. The difference is
substantial. If a solicitor in South
Australia negotiates a surrogacy contract currently, then the solicitor commits
an offence. Surrogacy arrangements under
the Act are not binding. They are not
contracts. If clause 10U(I) is enacted,
then a solicitor cannot take part in negotiating a surrogacy arrangement for a
client.”
Mr
Page noted that a similar offence exists in the United Kingdom and he asserted
anecdotally that it has resulted in parties going to their solicitors with
draft terms and agreements they have found online.
SALRI
agrees with the concern about the scope of the proposed revised offence in the
2017 Bill.”
Recommendation 16
SALRI recommends that the
Surrogacy Act (a relevant Act) should
include an offence that “…a person must
not publish any advertisement, statement, notice or other material that seeks
to introduce people for a reward or other inducement with the intention that those
people might enter into a surrogacy arrangement (whether non-commercial or
commercial)”.
Recommendation 17
SALRI recommends that, in
light of the ineffectual nature, the extraterritorial offences relating to
commercial surrogacy as exists in the Australian Capital Territory, New South
Wales and Queensland should not be introduced in South Australia.
Comment
It was also noted to
SALRI that such extraterritorial laws are of little utility unless they are
actively enforced and the need to also enforce such laws was also noted. Mr Adams, for example, argued that the
authorities:
“…must
make steps to prosecute all parties involved in the exploitation of women and
the sale of children, which is what occurs under international commercial
surrogacy agreements. Previously in
other Australian States, parties that have undertaken such agreements have not
been prosecuted. Those States have in
effect therefore given a green light to an endorsed exploitation in the sale of
children. The only way to prevent such
ethically and morally wrong practices is to actually prosecute those doing so
as a preventative measure. Currently, it
is well known within the “Surrogacy Community” that those undertaking
commercial agreements overseas will not be prosecuted by those jurisdictions
and therefore they feel free to flaunt and openly mock the law.”
However, a strong contrary view was also expressed to
SALRI that saw no need for such an extraterritorial offence in South
Australia. Indeed, it was widely noted
that such offshore surrogacy offences are ineffectual, if not positively
unhelpful. This view was expressed by
parties including Simone Cureton, Dr Ronli Sifris at Monash University, Mr
Everingham of Surrogacy Australia, Professor Stuhmcke and Millbank and several
intending parents.
“Mr Page explained that:
‘History
demonstrates that trying to stop (by criminal sanction) people going overseas
for surrogacy does not work’.
Mr Page noted the Australian Capital
Territory, New South Wales and Queensland extraterritorial offences had never
led to any prosecutions, even when apparent clear cases had been referred to
the DPP for consideration for prosecution by the Family Court. He said the DPP is likely to have more
pressing things to focus on. Mr Page noted these offences should either be
enforced or appealed and ‘don’t have a mockery of the law’. Mr Page raised what real sanction would ever
be imposed for a parent charged with breaching the extraterritorial offence as
it could leave the child born As a result of surrogacy without a parent. Mr Page also noted these offences can be
readily evaded by the intended parents moving (or appearing to move as more
than one party noted to SALRI) interstate where such specific laws do not
exist. Mr Page said that such offences
are unhelpful in leading to secrecy and discourage transparency and any such
parents from coming forward.”
SALRI also noted that Chief Justice Pascoe had said:
“It
is plain…that the current State and Territory laws do not deter people from
engaging in commercial surrogacy in order to become parents and international
commercial surrogacy is becoming increasingly common.”
A recent ABC report had the following comment of the
extraterritorial offences:
“Want
to introduce such a law and not enforce it”.
The practical effectiveness of the extraterritorial
criminal laws to deter overseas surrogacy has been doubted by the Australian
Human Rights Commission.
Professor Anita Stuhmcke
noted that three of the four jurisdictions worldwide that currently impose
extraterritorial prohibitions on commercial surrogacy are Australian States and
that the only other private life offences to attract a similar level of
international liability are female genital mutilation and child sex. She concludes that, with the exception of a
couple of New South Wales Family Court cases in which the judge recommended
that prosecution be considered, these laws ‘are
an exercise in pure symbolism’.
Professor Stuhmcke argues that the introduction of these laws follow
little debate and fail to be informed by those actually engaging in cross-border
reproduction. She also questions whether
this infringes on a right to seek medical treatment wherever people choose.
SALRI concluded:
“It
considers that any specific extraterritorial surrogacy offence is inappropriate
and ineffectual. Such laws have not
discouraged Australians from using commercial surrogacy overseas. It is notable
that no person has ever been prosecuted in Australia for international
commercial surrogacy, not even cases referred to the DPP by the Family Court
for consideration of whether a prosecution should be instituted against the
parents who had contravened the extraterritorial offences. The State Authorities, including South
Australian police, are likely to lack the role, resources, specialised
expertise, and, one suspects, inclination (given their many other demands) to
effectively deal with international commercial surrogacy. The notion of SAPOL officers travelling to
Kiev or India or Cambodia to gather evidence or seeking or obtaining effective
cooperation from overseas authorities is highly unlikely.
The
Parliamentary context is also significant.
The Hon. John Dawkins explained in relation to the 2015 Act that it was
not his intention to introduce extraterritorial application of the commercial
surrogacy offences and he had been careful to avoid doing so.”
Recommendation 18
SALRI recommends that a
website should be developed which provides advice and information for
Australians considering domestic surrogacy and should include:
1. clear
advice on the role of Commonwealth Government support and service provision for
intending parents, surrogates and children including Medicare, social security
and welfare payments, child support and paid parental leave;
2. clear
advice on the surrogacy legislation in each Australian State and Territory;
3. clear
advice on the support and services funded and provided for by each Australian
State and Territory including relevant health, counselling and legal services
available; and
4. best
practice guidelines and other information for healthcare providers including
hospitals, obstetricians, paediatric care, employers and others dealing with
surrogates.
In this context, SALRI
encourages the Commonwealth to implement recommendation 6 of the House of
Representatives Standing Committee on Social Policy and Legal Affairs,
Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of
International and Domestic Surrogacy Arrangements (2016) for the Commonwealth
Government to develop such a website.
Recommendation 19
In the event that the
Commonwealth does not set up such a website, in the alternative, or in addition
to recommendation 18 above, SALRI recommends that an appropriate agency or
agencies in South Australia such as SA Health or the Legal Services Commission
prepares a suitable page on their own site to provide reliable and impartial
information.
Recommendation 20
SALRI recommends that any
Surrogacy Act should confirm that a
surrogacy arrangement should not proceed or be undertaken in South Australia
unless, and until, the parties have in place a legal agreement that satisfies
the relevant legislative requirements such as legal and counselling advice.
Recommendation 21
SALRI recommends that the
current concept of infertility to access lawful surrogacy in South Australia
should be retained but that, to clarify and update the relevant terminology,
the present definition of infertility
in section 10HA(2a)(e) of the Family
Relationships Act 1975 (SA) should be removed and replaced with a new Surrogacy Act or other relevant Act with
the following definition of medical or social need to access lawful surrogacy
based on section 30(2) Surrogacy Act 2010 (NSW):
“(2) There
is a medical or social need for a surrogacy arrangement if:
(a)
there
is only one intended parent under the surrogacy arrangement and the intended
parent is a man or an eligible woman, or
(b)
there
are 2 intended parents under the surrogacy arrangement and the intended parents
are:
(i)
a
man and an eligible woman, or
(ii)
2
men, or
(iii)
2
eligible women.
(3) An eligible woman is a
woman who:
(a) is
unable to conceive a child on medical grounds, or
(b) is
likely to be unable, on medical grounds, to carry a pregnancy or to give birth,
or
(c) is
unlikely to survive a pregnancy or birth, or is likely to have her health
significantly affected by a pregnancy or birth, or
(d) if
she were to conceive a child:
(i) is
likely to conceive a child affected by a genetic condition or disorder, the
cause of which is attributable to the woman, or
(ii) is likely to conceive a child who is
unlikely to survive the pregnancy or birth, or whose health would be
significantly affected by the pregnancy or birth.”
Recommendation 22
SALRI recommends that all
references to ‘husband’ and their
accompanying definitions in Part 2B of the Family
Relationships Act 1975 (SA) should be removed and replaced in any new Surrogacy Act with ‘spouse’ to be inclusive of surrogate mothers and intending parents
and same-sex relationships.
Recommendation 23
SALRI recommends that any
Surrogacy Act should provide the
surrogate mother must be at least 25 years of age in order to be a party to a
lawful surrogacy agreement in South Australia, unless the Accredited
Independent Counsellor, as part of the counselling (and screening) process, is
satisfied that there are exceptional circumstances to support a woman under the
age of 25 years acting as a surrogate mother.
Recommendation 24
SALRI recommends that any
Surrogacy Act should provide that the
intending parents must be at least 25 years of age in order to be a party to a
lawful surrogacy agreement in South Australia, unless the Accredited
Independent Counsellor, as part of the counselling (and screening) process, is
satisfied that there are exceptional circumstances to support a person under
the age of 25 years acting as an intending parent.
Recommendation 25
SALRI recommends that
there should be no legislative requirement for a surrogate mother to have previously
carried a pregnancy and given birth to a live child in order to access a lawful
surrogacy agreement in South Australia, on the basis that this consideration
should be addressed as part of the counselling (and screening) process.
Recommendation 26
SALRI recommends that the
current prohibition in South Australia on single people accessing surrogacy is
discriminatory and inappropriate and should be repealed.
Recommendation 27
SALRI recommends that any
Surrogacy Act should clarify the
present law regarding surrogacy arrangements involving a child with no genetic
link to either of the intending parents, namely that the intending parents can
enter into a lawful surrogacy agreement in South Australia but only if a
medical practitioner is satisfied that both of the intending parents appear to
be infertile or there is medical reason why it would be preferable not to use
such human reproductive material to achieve the pregnancy. However, this aspect of the law should be reviewed
in 5 years (or 5 years after commencement for any new Surrogacy Act) as further research is available about the
development and implications of donor-conceived individuals and adolescents in
adulthood.
Recommendation 28
SALRI recommends that
South Australian law should recognise surrogacy-related processes that occur in
analogous and comparable Australian jurisdictions which contain key features
and safeguards of the South Australian legislative regime.
Recommendation 29
SALRI recommends that any
Surrogacy Act should provide that,
for a lawful surrogacy arrangement in South Australia to be legally recognised,
the intending parent(s) must ordinarily reside in South Australia prior to the
agreement being entered into. SALRI
recommends that where the surrogate mother resides and where the fertility
treatment occurs should be irrelevant to any such agreement.
Recommendation 30
SALRI recommends that any
Surrogacy Act should provide that the
surrogate mother and intending parent(s) must either be an Australian citizen
or an Australian permanent resident to be eligible to access a lawful surrogacy
agreement in South Australia.
Recommendation 31
SALRI recommends that any
Surrogacy Act (or other relevant Act)
should allow the mutual recognition of interstate parentage orders.
Recommendation 32
SALRI recommends that any
Surrogacy Act should require the full
and frank exchange of information between the parties to a lawful surrogacy
agreement (that is the surrogate mother, her partner (if any) and the intending
parents) and the Accredited Independent Counsellor(s), prior to a surrogacy
agreement being entered into so that all parties can properly assess whether or
not to enter such an agreement and/or the agreement is appropriate and will be
in the best interests of the child.
Included in the information exchange should be any information that will
enable the other parties to the lawful surrogacy agreement, and the Accredited
Independent Counsellor(s), to consider whether or not a party might propose a
risk to the child or another party. As
part of this process, each part should (if possible) obtain and provide to the
other parties and the Accredited Independent Counsellor(s) either a Working
with Children Check (although SALRI notes that there may well be difficulties
at this stage with such a requirement) or a National Criminal History
Check. Any check must be obtained prior
to accessing any surrogacy-related fertility procedure AND prior to entering
into a surrogacy agreement. The parties
should be advised of this requirement as part of their independent legal advice
obtained in the process of receiving their lawyer’s certificate.
Recommendation 33
The Regulatory Framework
governing surrogacy arrangements in South Australia should be consistent with a
public health approach and with the public health principles set out in
sections 5 to 16 of the Public Health Act
2011 (SA).
Recommendation 34
SALRI recommends that
information about Chapter 8 of the National Health and Medical Research
Council’s Ethical Guidelines on the Use
of Assisted Reproductive Technology and Clinical Practice and Research
should be accessible to all potential parties to surrogacy agreements and be
provided as a matter of course to all clients of registered fertility clinics
considering surrogacy as an option.
Recommendation 35
SALRI recommends that the
relevant Chapters of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted
Reproductive Technology and Clinical Practice and Research should be
subject to a public consultation and review on a regular basis, in addition to
the existing processes for expert review by the NHMRC and its relevant
committees.
Recommendation 36
SALRI recommends that
practical information and guidance (for example in the form of Fact Sheets or
Guidelines) should be developed by SA Health in consultation with surrogate
mothers, intending parents, relevant South Australian hospitals, maternal
health service providers, fertility providers, counsellors and obstetricians on
how to provide high quality and sensitive care to surrogate mothers and
intending parents in the context of a lawful surrogacy agreement.
Recommendation 37
SALRI recommends that
fertility clinics should provide potential parties to a lawful surrogacy
arrangement with information about the circumstances in which fertility
treatment will be provided to either the surrogate mother or the intending parent(s)
prior to and during the surrogacy arrangement.
This would allow parties to a lawful surrogacy arrangement to consider
including, in the surrogacy arrangement, an undertaking by the intending
parent(s) not to continue to receive fertility treatment once a viable
pregnancy has been achieved by a surrogate mother in accordance with the
surrogacy arrangement.
Recommendation 38
SALRI recommends that all
parties to a lawful surrogacy arrangement (as well as the partner of the
surrogate mother, if any) should have access to appropriate, high quality and
specialist counselling services by an Accredited Counsellor as required prior
to, during and following a lawful surrogacy arrangement.
Recommendation 39
SALRI recommends that any
Surrogacy Act should provide that all
parties to a South Australian lawful surrogacy arrangement (as well as the
partner of the surrogate mother, if any) must obtain a counselling certificate
(which includes screening as to the suitability of the parties to enter into a
surrogacy arrangement) by an Accredited Independent Counsellor prior to any
lawful surrogacy arrangement or related fertility treatment.
Recommendation 40
SALRI recommends that, to
give effect to Recommendation 39, the Surrogacy
Act (or elsewhere) should include the following legislative changes to
improve the present counselling (and screening) process:
1. Retaining
the current requirements in section 10HA of the Family Relationships Act 1975 (SA) for all parties to the surrogate
agreement, and the surrogate mother’s partner, to obtain counselling prior to
the lawful surrogacy agreement by an Accredited Independent Counsellor.
2. Amending
section 10HA(3)(ab) to require each person referred to in section 10HA(2a)(g)
to receive independent counselling,
whether provided by the same counsellor not.
3. Amending
section 10HA(3)(b)(i) to require a counselling certificate to be issued by an
Accredited Independent Counsellor which states that the person to whom it
relates has received counselling about the full range of relevant matters which
includes:
(i)
The potential long-term psychosocial
implications for each individual and each family involved, including the
surrogate child and any other child/ren within the family unit(s) who may be
affected by that birth.
(ii)
The reason(s) why the potential surrogate
mother wants to become involved in a surrogacy agreement.
(iii)
The need for the surrogate mother’s free,
voluntary and informed agreement to enter into a lawful surrogacy agreement.
(iv)
The surrogate mother’s right to make
informed decisions about their own medical care, including before and during
the pregnancy and birth.
(v)
The possibility that the surrogate mother
may need medical and/or psychological assistance during any attempts to become
pregnant, during the pregnancy and following the birth and that the pregnancy
may affect the surrogate mother’s own health.
(vi)
The potential significance of the
gestational connection and the right of a child born as a result of surrogacy
to know the details of their birth and background, the benefits of early
disclosure.
(vii)
The possibility that a child born as a
result of surrogacy may learn about the circumstances of their birth from
sources other than the intending parents (for example from other family
members) and may independently access information about their birth.
(viii)
The possibility that a child born as a
result of surrogacy may attempt to make contact with the surrogate mother in
the future.
(ix)
The impact of the potential surrogacy
agreement on the surrogate mother’s partner and other children, and on the
couple’s relationship and/or the family unit.
(x)
The impact of the potential surrogacy
agreement on the intending parents’ other children, and on the couple’s
relationship and/or the family unit.
(xi)
The implications for all parties, if it is
proposed that the surrogate mother will provide her own ovum for use within a
surrogacy arrangement.
(xii)
The exceptional circumstances present,
which would deem it allowable for any party (the surrogate mother and/or
intending parents) to participate in a surrogacy arrangement under the age of
25 years.
(xiii)
The need for the Accredited Independent
Counsellor conducting the counselling and screening to confirm that the
surrogate mother, her partner (if any) and/or the intending parents are
suitable to take part in a lawful surrogacy agreement.
(xiv)
The need for the Accredited Independent
Counsellor conducting the counselling and screening to confirm that the
proposed surrogacy agreement will be in the best interests of any child already
existing and any child born as a result of the surrogacy agreement.
Recommendation 41
SALRI recommends that any
Surrogacy Act (or accompanying
regulations) provide that full membership of, or eligibility for full
membership of, the Australian and New Zealand Independent Counsellors (sic)
(should be reference to Infertility) Counsellors Association, is a necessary
prerequisite to act in South Australia as an Accredited Independent Counsellor
and carry out the counselling (and screening) role in relation to a lawful
surrogacy agreement.
Recommendation 42
SALRI recommends that
registered fertility clinics should adopt internal processes to ensure that an
individual providing the counselling (and screening) to each person referred to
in recommendations 39 and 40 is in a position to provide independent
counselling (and screening) to each client (they also note recommendation 43
below).
Recommendation 43
SALRI recommends that any
Surrogacy Act should make it clear
that an Accredited Independent Counsellor responsible for the issue of a
counselling certificate (including determining the suitability of a party or
parties to enter into a lawful surrogacy agreement) cannot be employed by a
fertility clinic or be a “contractor”
(in the sense of receiving a commission, bonus or any form of valuable
consideration from the clinic as a result of the surrogacy arrangement).
Recommendation 44
SALRI recommends that it
should not be mandatory for the parties to undergo counselling during the
surrogate mother’s pregnancy. Rather,
SALRI recommends that any Surrogacy Act
should require that the lawful surrogacy agreement states that the intending
parents will take reasonable steps to ensure that the surrogate mother and her
partner (if any) are offered counselling (at no cost to the surrogate mother or
her partner) during any attempts to become pregnant (even if a pregnancy is not
achieved) and during any pregnancy to which the agreement relates.
Recommendation 45
SALRI recommends that any
Surrogacy Act should provide that it
is mandatory for the surrogate mother to undergo one session of counselling
with an Accredited Counsellor of the surrogate mother’s choice after the birth
of a child (with any cost to be met by the intending parents). The counsellor (who need not be an Accredited
Independent Counsellor) as part of this session should provide a short post
birth report to guide the Court as to whether a more detailed report may be
necessary to assist the Court in determining if any order is in the best
interests of the child. Any Surrogacy Act should include an express
power for the Court to order a more detailed report from an Accredited
Counsellor or suitable other expert of the Court’s choice if the Court
considers it appropriate and/or in the best interests of the child.
Recommendation 46
SALRI recommends that any
Surrogacy Act provide that both the
surrogate mother and the intending parent(s) must have a certificate from an
Australian lawyer certifying that they have received independent legal advice
on the surrogacy agreement and its various implications.
Recommendation 47
SALRI recommends that
more detail and clarity should be added by any Surrogacy Act to the type of legal advice that has to be provided
to the parties. In this regard, SALRI
recommends that the form of a surrogacy agreement should meet certain legal
requirements in order to be valid, and should include (at a minimum) the
following criteria:
(a)
The agreement is signed by all parties;
and
(b)
Before signing the agreement, each party
is to be provided with independent legal advice from a legal practitioner about
the effect of the agreement on the rights of that party and about the
advantages and disadvantages, at the time the advice was provided, to that
party if making the agreement; and
(c)
Either before or after signing the
agreement, each party is to be provided with a signed statement by the legal
practitioner stating that the advice referred to in paragraph (b) was provided
to that party (whether or not the statement is annexed to the agreement); and
(d)
A copy of the statement referred to in
paragraph (c) be provided to the other party or to a legal practitioner for the
other party; and
(e)
The agreement is a contract of which the
proper law of the contract is South Australian law; and
(f)
The agreement has not been terminated and
has not been set aside by a court.
Recommendation 48
For the purposes of
recommendation 47 above, SALRI recommends that the present law be extended in
any Surrogacy Act to provide that the
content of the legal advice provided to the parties should include information
dealing with the rights and responsibilities for the child, particularly
regarding the authority to make decisions relating to healthcare (both pre and
post birth), and upon making of an order as to parentage by a court of
competent jurisdiction, the effects of the agreement or matters of succession in
an estate planning the categories of costs recoverable.
Recommendation 49
SALRI recommends that the
Youth Court (or any other relevant court) should be provided with the
counsellor’s certificates, any initial counselling reports in respect of the parties,
the Working with Children Checks (or the National Criminal History Checks) and
the lawyers’ certificates in respect of their advice to the parties. This material should be lodged with the Youth
Court or any other relevant court prior to any order being made transferring
the legal parentage to the child.
Recommendation 50
SALRI, noting the value
of mediation in a surrogacy context, recommends that:
(a)
The parties have the right, although not
compulsory, to access mediation services through an experienced family law
mediator to assist in negotiating the surrogacy agreement between them and this
should not constitute an offence by the mediator or facilitating service under
the relevant provision.
(b)
In the event of a dispute about the terms
of the surrogacy agreement during the life of the agreement, the parties can
attend mediation to attempt to resolve the dispute and, if this fails, either
party can request the mediation to act as arbitrator in order to resolve the
dispute, following which, any decision of an arbitrator is binding on the
parties.
Note: The aim of
mediation should be to try to prevent any disputes arising. The use of mediation and/or arbitration is
strictly voluntary, and the parties retain the right, in the alternative, to
make an application to a court of competent jurisdiction, however, the aim
should be to keep the costs of litigation as low as possible.
Recommendation 51
SALRI recommends that any
Surrogacy Act should provide that the
part of the surrogacy agreement relating to costs and expenses should be legal
and enforceable.
Recommendation 52
SALRI recommends that, in
relation to costs, the guiding principles should be set out in any Surrogacy Act and should be that:
(i)
no valuable consideration shall be
provided for the act of becoming pregnant and carrying a child for another
person; and
(ii)
a surrogate mother should not be
financially disadvantaged as a result of taking part in a surrogacy arrangement
and should be able to recover any costs actually incurred as a direct result of
the pregnancy and birth.
Recommendation 53
SALRI recommends that any
Surrogacy Act should provide that all
costs directly related to the lawful
surrogacy agreement (including the process of getting pregnant, the pregnancy
and birth of the child) should be recoverable by the surrogate mother under a
lawful surrogacy arrangement. The scope
of these costs should be set out in the parties’ individual surrogacy
agreements. However, such costs should be permitted to include:
(a)
Medical costs relating to a pregnancy
(including any attempt to become pregnant) that is the subject of the
agreement.
(b)
The birth or care of a child born as a
result of that pregnancy.
(c)
Counselling provided in connection with
the agreement (including after the birth of a child).
(d)
Medical services provided in connection
with the agreement (medical services provided prior to achieving a pregnancy,
and medical care provided during the pregnancy and after the birth of a child).
(e)
Legal services provided in connection with
the agreement (including after the birth of a child).
(f)
Any premium paid for health, disability or
life insurance which would otherwise not have been taken out, but for the
agreement.
(g)
Loss of income of the surrogate mother as
a result of leave during the pregnancy or immediately after the pregnancy when
the surrogate mother was unable to work on medical grounds. Recoverable loss of income should be limited
to a period of 2 months. Loss of income
should be recoverable regardless of the surrogate mother’s access to
alternative sources of paid leave during the same period (such as paid parental
leave, provided the leave was required on medical grounds).
(h)
Travel and accommodation costs of the
surrogate mother (and her dependents) related to the pregnancy (including any
attempt to become pregnant).
(i)
Reasonable out-of-pocket expenses
(including childcare related expenses and loss of domestic services expenses)
incurred by the surrogate mother in respect of the agreement.
(j)
Any other costs directly related to the
surrogacy agreement as prescribed by the Regulations.
Recommendation 54
SALRI recommends that the
present law relating to recoverable costs should be amended in any Surrogacy Act to provide that:
(a)
the scope of recoverable costs should be
set out in the parties’ individual surrogacy agreement, but must include all
relevant medical costs and the provision of independent legal advice and
counselling to the surrogate mother and her partner prior to, during and after
the term of the surrogacy agreement;
(b)
costs recoverable are those that have
actually been incurred by the surrogate mother; and
(c)
the provisions in the lawful surrogacy
agreement relating to costs are legally enforceable between the parties (for
example through the small claims process).
Recommendation 55
SALRI recommends that
information setting out the typical range of costs recoverable under a lawful
surrogacy agreement be made publicly available, for example in the form of a
Table Schedule of Surrogacy Costs or as a questionnaire, to prompt potential parties
to surrogacy agreements to turn their mind to the full range of potential costs
recoverable under a lawful surrogacy agreement in South Australia. Such information could be prepared with the
assistance of legal experts and published by a relevant Government Department
or other body that currently disseminates general legal information on family
law matters such as the Legal Services Commission or Relationships Australia.
Recommendation 56
SALRI recommends that any
Surrogacy Act should include an expressed
incidental power to enable the relevant court to determine any outstanding
issues such as an unresolved issue about costs under a surrogacy agreement when
it considers transferring the legal parentage to the intending parents. Section 24 of the Surrogacy Act 2012 (Tas) is an example of such a provision in this
context.
Recommendation 57
SALRI recommends that the
process in South Australia for obtaining a birth certificate with respect to a
child born as a result of a lawful surrogacy agreement includes mandatory
requirements at the stage of notification of birth, registration of birth and
the issue of a birth certificate for the collection of information about the
child’s intending parents and any donors of human reproductive material. The collection of such information should not
affect the legal parentage of the child, which should remain with the surrogate
mother (and her partner/spouse as is the current position under the Family Relationships Act 1975 (SA)),
unless, and until, an order for transfer of legal parentage is made by the
Youth Court.
Recommendation 58
SALRI recommends that the
current process for reissuing a birth certificate upon a declaration of legal
parentage by the Youth Court remain and that the Register of Births retains the
name of the surrogate mother in its historical records.
Recommendation 59
SALRI recommends that a
birth certificate for a child born as a result of a surrogacy arrangement
should, upon any transfer of legal parentage, include a brief notation such as
an asterisk or the term “reissue” to
indicate that there are relevant historical records which can be sought. The note of the existence of the historical
records should appear on the face of the birth certificate but should not
provide specific detail of the type of record held. The details as to the surrogate mother and/or
any donors of genetic material should not appear on the face of the birth
certificate given the privacy of such material and other legitimate concerns.
Recommendation 60
SALRI recommends that a
child born as a result of a surrogacy arrangement should be formally entitled, under
the relevant Act, to obtain a certificate (or similar documentary record)
certifying all relevant entries in the Register of Births, including details of
the surrogate mother and/or any donors of genetic material, once the child
obtains the age of 16 years.
In addition, provision
should be made in the Registrar’s access policy to allow the Registrar to
exercise his or her discretion to grant a child born as a result of a surrogacy
arrangement, access to a certificate certifying all relevant entries in the
Register of Births regardless of the child’s age, provided that the Registrar
is satisfied that such access would not be harmful to the welfare of the child. The Registrar may request that a counselling
certificate or similar documentation be provided to assist in their assessment.
Recommendation 61
SALRI recommends that
consistent with existing law and practice, legal parentage should remain with
the surrogate mother until a court of appropriate jurisdiction makes a
parentage order to the contrary.
Recommendation 62
SALRI recommends that any
Surrogacy Act provide that a court
should have the discretion to be able to extend the period in which an
application to transfer legal parentage can be made. When exercising a discretion to extend, the
court should consider all relevant circumstances as to the reason for the delay
in making the application and determine whether an extension of time is in the
best interests of the child.
Recommendation 63
SALRI recommends that any
Surrogacy Act provide that a court
should have a discretionary power to make a parentage order notwithstanding
that one or more of the conditions otherwise applicable for the making of such
an order is not satisfied. When
exercising this discretion, the court should consider all relevant
circumstances, including the nature and extent of the non-compliance of such
conditions, the circumstances of non-compliance, including whether
non-compliance was deliberate or inadvertent, and the best interests of the
child.
Recommendation 64
SALRI recommends that
South Australia should refer a power (consistent with referrals from New South
Wales, Queensland, Tasmania and Victoria) which provides that the Family Court
may make a determination of parentage “whether
or not the determination of the child’s parentage is incidental to the
termination of any other matter within the legislative powers of the
Commonwealth” and upon receiving the referral of power from South
Australia, the Commonwealth Government should amend section 69VA of the Family Law Act 1975 (Cth) to reflect
these referrals.
Recommendation 65
SALRI recommends that
South Australia introduce a conclusive statutory presumption of parentage on
the basis of a finding of parentage made by another State, Territory or
Commonwealth court, as is the situation in the Australian Capital Territory,
New South Wales and Queensland.
Recommendation 66
SALRI recommends that an
interstate order relating to parentage of a child of a surrogacy arrangement be
able to be given effect as if it was made in South Australia, in addition to
recognising Commonwealth orders as to parentage.
Recommendation 67
SALRI recommends that it
is an issue at the national level (whether for the Commonwealth or the
Commonwealth, States and Territories jointly) to resolve the effect and
implication of Bernieres in relation
to both international, commercial and non-commercial surrogacy
arrangements.
Recommendation 68
SALRI recommends that it
examine the various consequential civil law issues and implications such as
succession law and medical care raised in a domestic surrogacy context as part
of a short spinoff report.
