Monday, May 25, 2015

"Extraordinary expertise in surrogacy"

It is rare that I receive compliments in this job, let alone from politicians, but I recently received compliments from a politician no less. John Dawkins is the Liberal whip in the South Australian Upper House. He has a bill before that Parliament, seeking to amend that State's Family Relationships Act, to create a register for surrogates (so that hopefully there will be more availability of surrogates) but also to ensure that anyone from South Australia who undertakes surrogacy overseas first has the permission of the State Attorney-General, before doing so.

The Bill has now passed the Upper House, although it was opposed by Labor Minister Ian Hunter as it has not removed discrimination against same sex couples. It is likely to be some months before the Bill is debated in the Lower House. The position of the Weatherill government as to the Bill is not known at this stage.

I was recently in Adelaide, and used the opportunity to meet with Mr Dawkins. For reasons of protocol, I am not in a position to say precisely what we discussed. However, talks were fruitful.

I am on the record as saying that South Australia:

  • needs to remove its discriminatory laws, which prevent gays, lesbians and singles from proceeding with surrogacy. It is likely that these laws will not survive a challenge under Federal anti-discrimination laws.
  • needs to remove the requirement that all fertility treatment for surrogacy needs to occur in SA.
  • should have laws to enable the easy alteration of birth records for children born in SA under interstate surrogacy arrangements.
  • needs to clarify what money can be paid to surrogates for their expenses.
  • needs to recognise the partner of the surrogate fully in the process.
  • needs to make sure that rather than having three counsellors at the beginning of the process, which potentially is a recipe for disaster, that there be one counsellor seeing both the intended parents and the surrogate and her partner.
  • needs to ensure that post-birth there is mandatory counselling for all concerned, before orders are made by the Youth Court.
I am also firmly of the view that a provision in the Surrogacy Act (Qld) that the birth mother has the same right as any woman as to how she manages her pregnancy and child birth is a vital protection for surrogates and ought to be copied nationally.

Following the discussions I had with Mr Dawkins, amendments were made by him to his Bill. These amendments included:

  • clearly involving the surrogate's partner in counselling: "Individuals closely associated with a surrogate will be significantly exposed to the process, from the impregnation to the birth of the child, and therefore, in my view, should have access to counselling services to assist them during their partner's surrogacy journey." Mr Dawkins said: "This potential amendment was raised with me by a lawyer who has extraordinary expertise in surrogacy legislation across the commonwealth as a suggested practical improvement to the current bill and law."
  • Counselling for the surrogate and her partner post-birth: "These constituents and experts who have suggested this practical amendment to me believe that counselling for the surrogate and the person closest to them, as their partner, is vital to ensure the mental health and wellbeing of the surrogate couple after parting with the child born as a result of the surrogacy agreement."
  • that there be one counsellor for all parties before signing the surrogacy arrangement: "
    I have moved this amendment after consultation with an expert surrogacy lawyer who I mentioned before and who has had significant experience in the practical implementation of current laws and how they might be improved for the benefit of all parties involved in altruistic surrogacy. The amendment will ensure that the counselling provided to the surrogate, their partner—regardless of whether that relationship is the result of a marriage or de facto or domestic relationship—and the commissioning parents is conducted where practicable by the same qualified and registered counsellor.

    This will enable the counsellor involved to have a holistic view of all the relationships between all of the parties involved in a prospective surrogacy agreement and enable them to issue or not issue a certificate based on the substantial information which will be gathered through this holistic approach. This could help nip—I think that was the term that the lawyer used to me—any potential issues which could arise during the life of the agreement in the bud, so to speak, before the agreement is executed."
    • That the surrogate have the right to control the pregnancy and child birth like any other woman: "While this amendment reflects existing law of the state of South Australia, after speaking with the legal expert in the field of surrogacy whom I mentioned earlier, I decided that it would be my intention with this amendment to reinforce that the surrogate mother—who is giving one of the greatest gifts that any person could ever give to another—has the right to conduct the pregnancy, insofar as it does not contradict the recognised surrogacy agreement agreed to by all parties, as if that surrogate was the natural mother of the child that would be born through the pregnancy that resulted from the agreement."

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