Three years ago, I took part in the New South Wales Surrogacy Act Review, which to my surprise was published in August this year. Back in 2015, then New South Wales Attorney-General Gabrielle Upton, flagged changing the law to enable people to advertise for altruistic surrogacy arrangements, and to fast track the process of transferring legal parentage of a child born via surrogacy. She was also reported as saying that she would crack down on people from New South Wales undergoing surrogacy overseas. That never happened.
I was quoted in an article in the Sydney Morning Herald back in 2015 as saying:
“We have had a crazy hotch potch of regulations. Hopefully we will have some nationally consistent laws so we are no longer the world’s biggest exporter of parents for surrogacy.”
The same Herald article noted that then Chief Judge Pascoe reiterated that week his longstanding support for legalising commercial surrogacy in Australia, to prevent the exploitation of all women overseas.
I never heard anything further about that surrogacy review. I didn’t know that it had actually been completed. Only recently, I discovered to my surprise that it had been published and presented to the New South Wales Parliament in August.
The recommendation of the review is only for two changes to the Surrogacy Act and Surrogacy Regulation. The first recommendation is that the Surrogacy Act 2010 (NSW) is amended so that:
“(a) A person must not publish any advertisement, statement, notice or other material that seeks to introduce people for a fee or other reward with the intention that those people might enter into a surrogacy arrangement (whether altruistic or commercial); and
(b) Section 10(2)(b) is repealed, permitting the payment of fees from an advertisement, statement, notice or other material if it is clear that any advertised arrangement is not a commercial surrogacy arrangement and any advertisement does not seek or offer rewards or other inducements; and
(c) Except for sub-recommendation (1)(a), the penalty provisions in Section 10 only apply to commercial surrogacy arrangements.”
Recommendation 2 proposes amending the surrogacy regulation so that all references to a qualified counsellor in the Act are defined as a person who:
“(a) holds a qualification conferred by a university (whether within or outside NSW) after at least 4 years full-time study or an equivalent amount of part-time study; and
(b) is a qualified psychologist, qualified psychiatrist or qualified social worker; and
(c) has specialised knowledge, based on the person’s training, study or experience, of the issues surrounding surrogacy.”
There have been no amendments proposed to legislation as a result of the report.
It was noted that between 2012 and 2018 there were 107 registered births in New South Wales from parentage orders arising from surrogacy arrangements.
The Review concluded that policy objective of preventing commercial surrogacy remains valid:
“…and we do not recommend amending this objective.
This policy objective aims to prevent exploitation, preserve the dignity of children and women and prevent the commodification of women and children. Such concerns would not be protected by a narrower objective.”
Some submissions propose that the Act would better protect the interests of children if the prohibition on commercial surrogacy were to be removed and the transfer of parentage and commercial surrogacy arrangements were to be allowed. The Review rejected those submissions:
“The provisions prohibiting commercial surrogacy should remain. The Review does not consider that lifting the ban on commercial surrogacy is in the best interests of children. While some countries have taken steps to eliminate commercial surrogacy, international commercial surrogacy is particularly problematic as it often takes place in developing countries with limited regulation, and may involve women who lack education, money and bargaining power. There are no assurances that a child born to an international commercial surrogacy arrangement could make contact with their birth mother and/or donors should they wish to do so.
Legalising commercial surrogacy within NSW may not eliminate international commercial surrogacy. As Professor Mary Keyes commented ‘Most intended parents appear to be price-sensitive…Even if there are women in NSW who are willing to undertake a commercial surrogacy, the cost would be significantly higher than in developing countries’.”
The Review did not recommend criminal record checks at this time, contrary to the approach in Victoria and contrary to what has recently been recommended in South Australia. The Review report says:
“The NSW Parliamentary Committee canvassed the issue of criminal record checks in its inquiry into altruistic surrogacy in 2009. The Committee concluded that it did not receive sufficient information to make further comment on the issue.
The Review does not recommend implementing criminal record checks for prospective surrogate parents at this time. The Act provides a mechanism for transferring legal parentage in respect of altruistic surrogacy arrangements. These arrangements often occur between family members or close friends and there is little evidence to suggest that such arrangements are not in good faith. The requirement may merely cause unwarranted inconvenience, expense and distress for those seeking to use altruistic surrogacy for genuine purposes.
Additionally, the ‘Baby Gammy case’ involved an international commercial surrogacy arrangement, which is illegal for NSW residents. Therefore, implementing a requirement for criminal record checks and domestic arrangements would not necessarily prevent similar situations occurring in the future.”
The Review noted that some submissions including mine, noted the inconsistency between surrogacy laws in Australian States and Territories. Stakeholders advocated for national harmonisation of surrogacy laws. However, they cautioned against any amendments to the Act that would mirror discriminatory or bureaucratic restrictions contained in the surrogacy laws of other Australian jurisdictions.
It was noted that while New South Wales provisions do not achieve national uniformity, they do contribute to a national system for the recognition of legal parentage through surrogacy across Australia.
I note that the SALRI Review in South Australia which has recommended changes to the South Australian law in that regard, clearly indicate that there is much more to be done on that point.
The Review noted that a number of submissions, including mine, suggested that the Surrogacy Act has not been effective at preventing commercial surrogacy as there is evidence that NSW residents have breached the prohibition on commercial surrogacy (at least in regard to international commercial surrogacy arrangements), and these breaches have not been prosecuted. The Review recognised that Australians including NSW residents have entered into commercial surrogacy arrangements overseas since the Act commenced and that to date there have been no criminal prosecutions for commercial surrogacy under the Act.
The Review noted:
“Breaches of the prohibition on international commercial surrogacy may be due to the inconsistency between State and Commonwealth laws. Under the Surrogacy Act, international and domestic commercial surrogacy is illegal. However, the Commonwealth Government may grant visas and/or citizenship to children born overseas through commercial surrogacy arrangements if surrogate parents are Australian residents or citizens. The Department of Home Affairs and Australian Embassies and High Commissions also provide information to Australians about commercial surrogacy arrangements. It may be that NSW residents will be less likely to enter into commercial surrogacy arrangements overseas if they did not receive support and assistance from Commonwealth authority.”
The Review then said:
“The NSW submission to the Commonwealth Parliamentary Committee [on surrogacy in 2016] acknowledged that without Commonwealth Government support in the form of visas and/or citizenship, children born of surrogacy arrangements may be left stateless or at risk of abandonment if intended parents were unable to bring them into Australia. This support from the Commonwealth is therefore necessary, but in practice helps to facilitate commercial surrogacy arrangements. NSW supports national cooperation on this complex issue.”
“Breaching the prohibition on international commercial surrogacy can be attributed to the desire of some people to become parents, and the remote risk of prosecution. There are difficulties associated with the enforcement of the extra-territorial application of the commercial surrogacy offence in the [Surrogacy] Act. In particular, there are evidentiary challenges associated with proving beyond reasonable doubt that a surrogacy arrangement entered into overseas was commercial. We also acknowledge that prosecution, conviction and potential imprisonment of parents may negatively impact the child born as a result of the surrogacy arrangement.”
There are three provisions in the Surrogacy Act that refer to qualified counsellors. The Surrogacy Regulation defines qualified counsellor for each one differently.
The Review did not recommend removing relinquishment counselling after the birth of the child but did recommend that there be clarity with the definition. The Review said:
“In his submission, Mr Stephen Page of Harrington Family Lawyers raised issues about the requirements for counselling and counsellors’ qualifications. He recommended that a broader definition of qualified counsellor be adopted, which does not depend on membership of ANZICA. He also observed that it is not clear whether two or three counsellors are required and noted that some counsellors who provide the initial counselling to clients to provide relinquishment counselling given the unclear definition. He also commented that relinquishment counselling increases the cost of counselling and suggests that it should be encouraged, but not compulsory.”
OTHER QUALIFICATIONS OF SURROGATE?
The New South Wales Law Society Family Issues Committee submitted that the following pre-conditions should be added to the Surrogacy Act to protect the wellbeing of the surrogate:
· She should be aged between 21 and 35;
· She must already have given birth to a child (or children);
· She must have received a positive medical assessment in relation to the proposed surrogacy.
AGE OF THE BIRTH MOTHER
The Review considered that the current provisions in the Act struck an appropriate balance. The age of 25 brings sufficient maturity to understand the nature and implications of the surrogacy agreement (although counselling and legal advice remain critical to the process of giving informed consent).
However, given that 18 is the age of legal adulthood, exceptional circumstances of women aged between the ages of 18 and 24 should be able to act as surrogates.
“We do to recommend an upper limit on the age of birth mothers. Many women choose to start their family later in life and have healthy pregnancies. Having an upper age limit would also limit the already small pool of potential altruistic surrogate mothers.”
The Review stated that it:
“…does not recommend prescribing such a requirement in legislation. Pre-surrogacy counselling addresses the birth mother’s individual circumstances, including whether she has given birth or not. Professional counsellors are best placed to consider emotional and physical risks that arise for each woman.”
POSITIVE MEDICAL ASSESSMENT IN RELATION TO THE PROPOSED SURROGACY
While it might seem obvious that a surrogacy won’t proceed unless there is a positive medical assessment, nevertheless the Law Society Committee put that forward that should be a requirement under the law. The Review stated:
“We consider medical professionals are best placed to provide a medical assessment prior to conception, not by a court following the pregnancy. We also note that such a medical assessment will be undertaken as a matter of course and surrogacy arrangements involving ART by its nature as a medical service, even though this is not a statutory requirement. We do not recommend amendment to include provisions requiring birth mothers to receive a positive medical assessment.”