Page 3461 - Week 12 - Tuesday, 11 October 1994
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legally as well as gestationally the mother of the child. Secondly, we are talking about agreements to substitute one set of parents for another set of parents, thus bringing into focus the issues of the legal parenthood of the child concerned, the welfare of the child, and the use that is made of the very real physical and emotional relationship that a woman has with a child to whom she gives birth.
In further addressing the issue, the Government has outlined the set of beliefs that it is adhering to in consideration of substitute parent agreements. Quite rightly, the Government believes that substitute parent agreements should not be enforceable at law. This means that in the case of a non-commercial substitute parent agreement, where perhaps a sister agrees to bear a child for another sister, if that first sister ultimately decides that after giving birth she wishes to keep the child, she will keep the child, and a court of law will not uphold the original agreement. In another situation, if the sister who wanted the child as her own declines to accept the child as her own, she cannot be legally forced to take and care for the child. It is fit and proper that the court must ultimately uphold the welfare of the child born in each of these circumstances in deciding who eventually has custody and care of the child.
This is another of the Government's stated beliefs with regard to the Substitute Parent Agreements Bill. In any action relating to the Bill the law would give paramount consideration to the welfare of the child involved. Again I have no difficulty with this belief as it has been outlined by the Government. Under substitute parent agreements the relinquishing process, once it is agreed that it will occur, must take place according to the laws of adoption, which this Assembly fully debated some 18 months ago before the passage of that Bill. I am entirely comfortable with that process and have known of no difficulties arising from those provisions of the Adoption Act which relate to the relinquishment process.
I also agree that commercial substitute parent agreements should be illegal. This means that no payment of money can be given to the mother bearing the child for her services on the condition that she relinquishes the child at birth. As indicated in the presentation speech, such an arrangement described above is similar to commercial transactions and agreements in relation to goods or products. Under these arrangements the child would be considered to be a good or product that is exchanged for a price. I believe that these agreements would not be supported by the community and should be banned.
The Government belief that I have taken issue with at this stage is the stated belief that it should be illegal to advertise in relation to substitute parent agreements to procure a person to enter into an agreement with a third person and to facilitate pregnancy for the purposes of an agreement. Mrs Carnell's proposed amendments to the Attorney-General's Bill address my concerns here. These sentiments are, of course, easy to understand if they are referring to an infertile couple who are seeking substitute parent agreements with people outside their own families; but I think they are less easy to understand in relation to medical professionals who have some experience in facilitating non-commercial substitute parent agreements where close family members or friends are involved.
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