Page 1731 - Week 06 - Thursday, 19 May 1994
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I wish to make it quite clear that we do not intend to make non-commercial substitute parent agreements illegal, nor will criminal charges be laid against those who are involved in them. This Bill will not outlaw extended families. We are not talking about the taking in or fostering of children as part of a family to give them love and care, so long as this is not for the purposes of depriving them of their true parentage other than through currently available legal procedures.
What we are talking about is the agreement by a woman that the child she bears will not be hers, that she will divest herself of all rights to the status of mother of the child she is going to bear. Where a woman agrees to bear a child for another family member, this will not be an offence. Let me give an example of a woman who bears a child for her sister. This is not an offence; but she knows that, if she decides to keep the child, the sister cannot have the contract upheld by a court. Similarly, if the sister does not want to take the child - say it has an impairment - then she cannot be legally forced to take the child. The courts must uphold the welfare of the child in deciding who has custody and care.
If the birth mother relinquishes the child, under adoption law she can do so only after the birth, and the prohibition of arranged adoption must be kept in mind. However, she can specifically name a relative as the person to whom the child is to be relinquished. There must be an application to the court through the ordinary adoption service. This makes substitute parent agreements very difficult to make, and there are other things the sisters will not be able to do under the Bill. For example, they will not be able to seek the services of a doctor to facilitate pregnancy. You might ask: Why not? Why cannot your caring doctor apply professional skills to help worthy couples who long for a child to have one through a substitute parent agreement? There is a danger that allowing such a service may result in the marketing of such agreements as medical treatment for infertility when in reality they are making children commodities.
In short, we believe that it is not proper or ethical for the state to be involved in decisions as to parentage or custody of a child based on a contract between individuals to foster such agreements. The state is the final protector of the welfare of children and does not alter parenthood according to private agreements. We believe that, if the state were to approve such agreements, it could be seen to be determining the very nature of motherhood and labelling women adequate or inadequate as mothers; supporting the principle of demand for, and supply of, goods to govern the establishment of parenthood; placing undue emphasis on production of a child of acceptable attributes; and possibly creating legal action for breach of contract based on personal behaviour of the birth mother. We do not want such developments to occur.
I will now take the individual provisions in the Bills and point out the changes we have made from the original exposure draft as a result of public consultation. As recommended by the health and welfare Ministers and accepted by all those who responded to the discussion paper we released, substitute parent agreements are void and unenforceable. This is provided for in clause 9 of the Bill. It was also generally accepted that the interests of the child are to be the paramount concern in any legal action arising in relation to a substitute parent agreement. This is provided for in clause 10 of the Bill.
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