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Time to think of the children in surrogacy cases

Opinion

It is time for an overhaul of Australia’s surrogacy laws, argues Morry Bailes.

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As a father of two boys I know the extraordinary privilege of being a parent.

It is truly one of life’s great gifts. But what if, for a multitude of reasons, you and your partner can’t conceive a child?

The emotional pull and joy of being a parent has given me, I think, an insight into what drives people to seek a child through surrogacy when all other options are closed.

It is not, however, easy for Australians who wish to enter a surrogacy arrangement to do so on home soil. It leads to surrogate mothers being sought abroad where laws and regulations are more relaxed, but such arrangements do not always have perfect endings.

Indeed, a recent decision by the Court of Appeal of the Family Court has thrown into doubt the parentage of surrogate children from commercial arrangements. Melbourne couple “Mr and Mrs Bernieres” employed a surrogate mother in India, using Mr Bernieres’s sperm and an anonymous donor egg. Their daughter is now three, and although there is no doubt that Mr Bernieres is the child’s biological father, the Court found that state law prevented it from recognising the Bernieres as the legal parents, and urged the states to legislate to protect the interests and parentage of surrogate children.

As it stands, the Commonwealth Family Law Act does not cater for children born to overseas surrogates. It is a matter for states and territories, however no state or territory legislation addresses surrogate children born overseas. The result is a grey area where parentage – and the status of thousands of surrogate children – is unclear in the eyes of the law.

In South Australia, if a child is born by a surrogate mother in accordance with our state legislation, the Family Relationships Act, an application can be made, by consent, to the Youth Court to change the legal parentage of the child to that of the commissioning parents.

The reason commissioning parents often enter into overseas surrogacy arrangements is because parliaments in Australia have made surrogacy arrangements in Australia lawful only with very strict limitations. One of those is that commercial surrogacy is not lawful in any Australian state.

There are few women in Australia who are willing to carry a baby for someone else with no financial reward.

Some commissioning parents are unable to provide the necessary genetic material to conceive a child and there are jurisdictions where even the provision of genetic material for limited financial reward (such as an egg) is prohibited. Finally, surrogacy is not available to single people and, until recently was not available to LGBTQI couples in SA. So, perhaps unsurprisingly, many people look abroad.

Whereas commercial surrogacy is not permissible in Australia, it is commonplace overseas.

The problem that arises is that owing to state legislation in some or all Australian jurisdictions, legal parentage will not be declared by a court when the child is born in a commercial surrogacy arrangement.

That is precisely what occurred in the Bernieres decision.

Their child is loved and cared for. However, as much as the Family Court may have wished to do otherwise, it could not do what state legislation prevented; recognise the child’s parentage. The result, of course, is doubly absurd given there was no factual doubt as to the identity of the child’s biological father.

What is worse, it would seem that with surrogate children’s parentage in doubt, so is their citizenship. Without recognition of parentage, could it be that children born in such circumstances are not regarded as Australian citizens? Might they instead be recognised as citizens of the country of the surrogate mother? Or are they stateless?

There are different views in our society about the morality of allowing commercial surrogacy arrangements in Australia. Without entering into that debate, it is worth reflecting on the fact that an unintended result of not allowing commercial surrogacy in Australia is that commissioning parents will inevitably go abroad.

A point often overlooked in any surrogacy discussion is the interests of the surrogate child. Too often these debates are seen to relate to the rights or obligations of Australians who seek to have a surrogate child. Quite frankly, having spoken to surrogate children, the emphasis ought to be on their welfare as well.

Indeed, many would well argue the child’s interests are paramount in these circumstances. That is certainly the way in which our federal Family Law Act is framed with respect to the rights and welfare of children more broadly.

It’s time to get our act together. That, certainly, seems to be the view of the former Chief Justice of the Family Court, Diana Bryant. And it is also not just this area that ought to receive attention from legislators.

It is a complex area, however surely not so complex that we cannot turn our minds to design a workable system

Who can forget the case of baby Gammy, the Down Syndrome surrogate twin left in Thailand by his commissioning parents, which sparked media attention in 2014? It is cases like this that emphasise the need to safeguard the interests and welfare of the surrogate child.

It is unfair to bring children into the world through surrogate arrangements, and yet not protect their rights and their welfare as best we can in legislation.

When the most senior family law court in the land makes a decision such as it did in the Bernieres case, and simultaneously remarks on the paucity and inadequacy of our current legislative framework, surely it is time for us all to consider the case for co-ordinated legislative reform.

As case after case is remarked upon in our courts and media, demonstrating that in all circumstances the interests and welfare of the child are not always put first, we must surely set aside the interests of commissioning parents and those who wish to enter into a surrogacy arrangement, in order to concentrate on the best interests of their children or intended children.

Children have no voice and no choice. They are the ones on whom we ought to be concentrating in this debate, and we are plainly not doing so.

It is a complex area, however surely not so complex that we cannot turn our minds to design a workable system that enables parents who desperately wish to have children through surrogacy to do so – whilst ensuring the best possible protection of children born in such circumstances.

If well-intentioned law in Australia is failing parents who would wish to have surrogate children here, but who are prevented, should we have a look at the reasonableness of our legislative regimes? Perhaps we are driving commissioning parents off-shore and into doubtful arrangements.

Should we look at the adequacy of our laws regarding commissioning parents who abandon surrogate children?

Where a child, innocent and unknowing as to the circumstances of their birth, cannot have their parent or parents recognised in law, the whole area shouts for reform.

It is time we put the interests of the child first.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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