Family Law

The States and Territories have agreed to work towards harmonising the laws that govern surrogacy, says Attorney-General Philip Ruddock.

At a meeting of the Standing Committee of Attorneys-General in Perth this month, Mr Ruddock outlined concerns that some couples had been forced to go interstate in search of more suitable arrangements.

Three states, including NSW, have no surrogacy laws, four have either restrictions or total bans and only the ACT specifically allows surrogacy in altruistic circumstances. Commercial surrogacy (where a surrogate is profits from the sale of a baby) is not permitted in any Australian state.

A discussion paper on the subject will now be prepared for the next Standing Committee meeting, which is likely to be held in April 2007. It is likely that this discussion paper could lead to new uniform legislation being drafted by 2008.

The disparity in surrogacy laws across Australia was highlighted recently after Victorian Labor MP Stephen Conroy revealed that he and his wife were forced to seek treatment in NSW in order to conceive a child using a surrogate mother and egg donor. The couple was unable to conceive after his wife, Paula Benson, had ovarian cancer.

Current Victorian legislation imposes such heavy conditions on surrogacy (only infertile women are permitted to become surrogate mothers) as to make it virtually illegal.

What is surrogacy?

Surrogacy refers to a situation in which a women has a child on behalf of another woman or couple.

There are two main types of surrogacy:

• Where an embryo is created through IVF, using the commissioning woman's eggs and the sperm of her partner or a donor, and implanted in the infertile surrogate mother.
• Where the partner of an infertile woman impregnates the surrogate mother by means of natural or artificial insemination. The surrogate mother then gives the custody of the child to the couple at birth.

In every state, commercial surrogacy (where the surrogate mother is paid) is prohibited, however several states implicitly or explicitly permit altruistic surrogacy in circumstances where the commissioning woman has a damaged uterus or a medical condition that makes carrying a baby dangerous, or has had a hysterectomy.

The argument for surrogacy

The issue of surrogacy has been the cause of great moral, ethical and legal debates, and several religious and social groups have condemned the recent review of surrogacy laws.

The argument in favour of surrogacy is based on the personal autonomy of the couple commissioning a surrogate mother. The view is that people should be free to make arrangements so long as those arrangements do not bring harm to others. According to some claims, the surrogate child and mother can be adequately protected if strict regulations and controls are established and enforced.

The argument against surrogacy

Arguments against the legalisation of surrogacy are mainly based on two issues: the best interests of the child and the rights and feelings of the surrogate mother.

Issues commonly raised include:

• What happens in the case of multiple births?
• What happens in the case where the surrogate mother miscarries?
• What happens if the child is born disabled?
• What happens if the surrogate mother does not want to give up the child?
• What happens if the commissioning parents do not want the child once it is born, or get divorced?
• Is it ever appropriate to pay a woman to be a surrogate mother?

Uniform surrogacy laws should dispel confusion and fear about the use of surrogacy and IVF treatments in Australia.