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Legislative Assembly for the ACT: 1996 Week 9 Hansard (27 August) . . Page.. 2570 ..

MRS CARNELL (continuing):

The donors of the gametes - that is, the genetic parents - have no legal relationship at all with the child. This also applies to de facto relationships, and that law is conclusive for all purposes. Thus no legal claim at all can be made to the child by the genetic parents. The Family Law Act of 1975, the Commonwealth Act, has similar provisions.

However, amending the Artificial Conception Act to simply make the genetic parents the legal parents of the child does not seem feasible, or, for that matter, appropriate. This would have the undesirable effect of making substitute parent agreements enforceable. This would be unacceptable because the principle that substitute parent agreements are not legally enforceable in themselves is a basic principle of the Substitute Parent Agreements Act. It is a principle to which I, for one, and I am sure everyone here, adhere. Under current law adoption is the only other way that a person who is not otherwise recognised as the legal parent of a child can become one. That person could also apply for a grant of custody and/or guardianship of a child under the Family Law Act. However, custody and guardianship give more limited legal care and control of a child. They do not change the parenthood of that child.

The Adoption Act 1993, however, says that the birth parents cannot name those whom they want to adopt the child unless those people are relatives of the child. The birth parents can nominate a specific person for adoption of their child only if they are a grandparent, sibling or aunt or uncle of the child. Where this is not the case, the child would come under effective guardianship of the Director of Family Services, who can place the child as he or she sees fit. The genetic parents would have no special claim to the child in adoption. They may have a difficult task in obtaining custody, guardianship or access to the child. Even if this were not the case, the adoption process is based on finding parents for a child already born. It is assumed that the birth parents and adopting parents involved are strangers. By contrast, surrogacy aims at finding a child for the genetic parents and they are known to the birth parents. Indeed, I believe that the fundamental difference in the circumstances surrounding surrogacy makes adoption inappropriate for legally recognising the genetic couple as the true parents.

It is my intention, through this Bill, to take another approach. It would allow genetic parents to obtain legal parentage of a child who has been born to another woman as a result of a surrogacy agreement. I believe that the most appropriate way to do this is to provide that the Supreme Court may make an order, a parentage order. This order would provide for a child born in the ACT to be treated in law as the child of the genetic parents under certain circumstances. The order would be made if the genetic parents meet five conditions.

Firstly, at least six weeks and no more than six months must have elapsed since the birth. Secondly, the child's home must be with the genetic parents. Thirdly, the birth parents must be in agreement freely and with full understanding of what is involved. In other words, the birth parents must agree. Fourthly, the genetic parents must be domiciled in the ACT when both the application and the order are made. Finally, both the genetic and the birth couple must have received assessment and counselling from a service other than the service carrying out the IVF procedure. However, the court may waive this last requirement if for some reason this independent advice has not been given. It may do so if it is satisfied that it is not otherwise contrary to the welfare and interests of the child to make the parentage order.

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