Page 4735 - Week 15 - Thursday, 16 December 1993
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that is, it would not be an offence to make such an agreement; however, the state should not condone any surrogacy agreements - that is, they should have no legal standing and should not be enforceable; commercial surrogacy would be illegal; it would be illegal to advertise in relation to surrogacy; assistance in making a surrogacy agreement by third parties would also be prohibited and a form of professional misconduct for professional health carers; and in any action relating to the custody or guardianship of a child the law would give paramount consideration to the welfare of the child.
The proposed legislation defines the term "surrogacy agreement" as agreement to become, or attempt to become, pregnant with the intention that the child is being gestated for someone else. This term also applies to an agreement by a person who is already pregnant that the child will become the child of another. The woman who is to carry the child thus agrees that on birth she will give the child to the commissioning parent or parents. The proposed legislation targets agreements regardless of whether the parties involved intend to adopt the child or to have the care, control or guardianship of the child. It also applies whether the parties to the agreement are relatives or not.
Mr Deputy Speaker, there is no doubt about the distress and loss felt by many of those who cannot have children. Infertility can be a serious disability, and it is often untreatable. Until recently, most couples who were infertile and wanted children adopted them. The decrease in children being relinquished for adoption over the last 10 years and the simultaneous development of reproductive technology have resulted in these couples now looking to alternative means of dealing with infertility. Thus a couple can arrange not only for a third person to bear a child for them but also for the child to be their own genetic offspring through embryo or gamete transfer. Such arrangements necessarily include many more individuals than formerly would have been the case and can involve major invasive medical treatments.
Some people argue that surrogacy agreements are contrary to the best interests of women in general and of those children involved in the agreements. Thus, they say, the state should prohibit them or at least not be seen to uphold them. Others say that surrogacy should be permitted out of compassion for couples who are infertile and contend that surrogacy, where it provides loving parents and a satisfactory home for a child, is a perfectly reasonable thing to do, even a noble act of generosity by a woman who is concerned for the happiness of others. These arguments are considered in the discussion paper, as well as a rationale for adopting the approach we have proposed.
Several approaches to surrogacy have been considered by nine different reports which have come from every State of Australia and two reports commissioned by the Federal Government. These are outlined in the discussion papers, so I will not go into them here. The approach favoured by 10 of the reports is the one which this Government is proposing - that is, the rendering of surrogacy agreements in themselves void and unenforceable at law as well as making commercial surrogacy and the assistance of it an offence. This is the approach we are putting to the ACT community for discussion.
This approach is also endorsed by the combined health and welfare Ministers of Australia, who in addition resolved that penalties and sanctions be applied to third parties through the classification of assistance of surrogacy as professional misconduct and the withdrawal of licences or approval to practise reproductive
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