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Legislative Assembly for the ACT: 1997 Week 13 Hansard (4 December) . . Page.. 4629 ..

MS TUCKER (continuing):

Many complex situations may arise in the process of a surrogacy arrangement. For example, the birth mother may change her mind; the four adults may agree in the beginning but then change their mind; and the genetic mother may decide that she does not want the baby because the baby has a disability. Then there is the term "genetic bewilderment", which is referred to in the CLRC report, that is, the situation where a child is confused about its identity. Mr Speaker, when I read the Hansard of 1994 I was struck by the naivety of some of the statements made then. For example, Mrs Carnell said:

Provided that arrangements for non-commercial surrogacy are between people who know each other well, people who have a longstanding relationship - that is often sisters, cousins, et cetera - who trust each other and have a clear commitment to each other's well-being, people who have the support of their families, who are informed about the procedures and the consequences and who are willing to participate ...

Mr Humphries was more cautious. He said:

... it is important for us to ensure that the consequence of this sort of legislation is not beyond the intention or the foreseeing of this Assembly tonight, and that we will be vigilant to ensure that this arrangement that we put in place, this liberty to engage in these activities in certain limited circumstances, will not be abused to the detriment of the children who are the primary focus of so much of our law ... They should also be the primary focus of legislation such as that ...

Obviously, the Bill that was passed that night was not well thought through, or we would not be debating this today. This is, in my opinion, another poorly thought through piece of legislation. When the now Chief Minister originally rushed the amendments through in 1994, she believed that parentage orders could be dealt with through adoption processes. That has proved to be not permissible, because the Adoption Act prohibits privately-arranged adoptions. So, the Chief Minister prepared the Artificial Conception (Amendment) Bill. This Bill was tabled in the Assembly in 1996, when it was referred to the Community Law Reform Committee.

While the CLRC did not deal with the substantive issues surrounding surrogacy, of which there are, indeed, many, it did at least go to great pains to highlight that the rights of the child should be paramount. The committee also commented that the approach being taken represented a significant departure from the existing law and it was difficult to determine the social consequences of the departure. The Government has ignored many of the recommendations of the CLRC - in particular, the recommendations which reinforce the primacy of the interests of the child in these processes.

For example, it ignored the recommendation that provisions be inserted into the Bill enabling the court to direct at any stage of the proceedings that the parties to the proceedings attend a conference or conferences with a counsellor or welfare officer to discuss the care, welfare and development of the child and that provisions be inserted into the Bill enabling the court to direct a counsellor or welfare officer to prepare a report for the court on such matters relevant to the proceedings as the court considers appropriate.

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