The Federal Parliamentary inquiry has concluded that commercial surrogacy in Australia continue to be banned, that there be national, non-discriminatory surrogacy laws, and that it be harder for Australians to undertake surrogacy in developing countries.
The inquiry, by the House of Representatives Select Committee on Social Policy and Legal Affairs, chaired by Nationals MP George Christensen, raised concerns about the potential for exploitation of both surrogates and children, and questioned whether birth certificates should issue that included the name of the surrogate and any donors of genetic material, as well as that of the parents.
The Committee has recognised that Australians will continue to access surrogacy overseas. It is likely that, with continued restrictions on surrogacy in Australia, that there will remain a shortage of available surrogates in Australia, meaning that if anything there will continue to be a growth in the number of Australians accessing commercial surrogacy overseas. However, the recommendations of the inquiry are to make it harder for Australians to access surrogacy overseas, by Australian intended parents having to prove to Australian officials that they have not broken the law in Australia or overseas before they can bring their children into Australia. Whether this will lead to children being trapped overseas remains to be seen.
The full list of recommendations is:
The Committee recommends that the practice of commercial surrogacy remain illegal in Australia.
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.
Recommendation 3 The Committee recommends that the Attorney-General request the Australian Law Reform Commission (ALRC) to conduct a 12-month inquiry into the surrogacy laws of Australian States and Territories, with a view to developing a model national law on altruistic surrogacy. The Attorney-General should request that the ALRC consider:
· first and foremost, the best interests of the child,
· previous reviews of Australian surrogacy laws, including the 2009 report of the Standing Committee on Attorneys-General and the 2013 Family Law Council report on Parentage and the Family Law Act 1975,
· the need for State and Territory laws to be non-discriminatory,
· the need for mandatory, independent and in-person counselling for all parties before entering into a surrogacy arrangement, during pregnancy, after the birth, and at relinquishment,
· the need for background checks, medical and psychological screening, and independent legal advice for all parties entering into a surrogacy arrangement,
· the need for parties to enter into a non-binding surrogacy agreement which sets out shared expectations of all parties, including dispute resolution processes, and which ensures that parties respect the birth mother's right to make decisions about her own health and that of the child,
· the processes by which parental responsibility is transferred from the birth mother to intended parents, and when this transfer should take place,
· the need for adequate reimbursement for the birth mother for legal, medical and other expenses incurred as a consequence of the surrogacy,
· the need for a closed register of surrogates and intended parents, to be administered by a Government body, access to which may be granted following background checks, and medical and psychological screening, and
· whether States and Territories should keep standardised statistical information on families formed through surrogacy to enable long- term studies of surrogacy's effect on families.
Recommendation 4 The Committee recommends that the Attorney-General request that the Australian Law Reform Commission consider the issue of birth certificates as part of its inquiry as set out in Recommendation 3. In particular, the ALRC should consider whether a child's birth certificate should contain information on all gestational, genetic and intended parents, including a record that the child was born as a result of a surrogacy arrangement
Recommendation 5 The Committee recommends that, within six months of the proposed report of the Australian Law Reform Commission being presented to the Attorney-General, the Attorney-General should request that the Council of Australian Governments (COAG) commit to the following actions:
· consultation with all Australian States and Territories in relation to the proposed model, and
· the development of national uniform legislation on altruistic surrogacy to be implemented in all Australian States and Territories. The Committee considers that the deliberations by COAG should not exceed 12 months.
Recommendation 6 The Committee recommends that the Australian Government develop a website that provides advice and information for Australians considering domestic altruistic surrogacy. The website should include:
· clear advice on the role of Australian Government support and service provision for intended parents, surrogates and children including Medicare, social security & welfare payments, child support, paid parental leave,
· clear advice on surrogacy legislation in each Australian State and Territory, and
· 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.
Recommendation 7 The Committee recommends that the Australian Government establish an interdepartmental taskforce (which should include eminent jurists with relevant expertise) to report in 12 months on ways to address the situation of Australians who choose enter into offshore surrogacy arrangements, with respect to:
· protecting the rights of the child, particularly their rights to be free from exploitation, to know their genetic heritage, to know the circumstances of their birth, and to have an ongoing relationship with their birth mother and any siblings or genetic donor/s,
· ensuring birth mothers give their free and informed consent and reducing the likelihood that they face exploitation,
· ensuring that Australians who enter into offshore surrogacy arrangements meet their responsibility to act in the best interest of all of their children, and
· considering whether it should be unlawful to engage in offshore surrogacy in any overseas jurisdiction where commercial surrogacy is prohibited. While not condoning Australians' use of offshore surrogacy, the aim of the taskforce should be to ensure that where the regulatory, economic or social conditions in a particular jurisdiction give rise to an increased risk of exploitation or rights violations, Australians entering into or facilitating surrogacy arrangements in that jurisdiction are made aware of those risks, and are subject to a more stringent investigative process to ensure that the rights of the birth mother and the child have not been infringed.
Recommendation 8 The Committee recommends that the interdepartmental taskforce should undertake a systematic audit of surrogacy destination countries to assess the extent to which surrogacy practices in these countries meet the requirements laid out in recommendation 3. The Committee considers that this audit will assist in informing the Australian Government’s response to the Australians who choose to enter into offshore surrogacy arrangements.
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.
Recommendation 10 The Committee recommends that the Australian Government, in its representations to the Experts' Group on Parentage/Surrogacy at the Permanent Bureau of the Hague Conference on Private International Law should prioritise:
· the rights of the child, particularly their right to know their genetic heritage, to know the circumstances of their birth, and to have ongoing relationships with their birth mother and any siblings or genetic donor/s,
· the rights of surrogate mothers to be free from exploitation, and to only engage in surrogacy arrangements to which they give their free and free informed consent, and
· the development of an international convention dealing with the regulation of parentage and surrogacy.