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Legislative Assembly for the ACT: 1997 Week 13 Hansard (4 December) . . Page.. 4631 ..

MS TUCKER (continuing):

A further complication is the potential for inconsistency between the Family Law Act and local legislation. Many believe that the Family Law Act is the most appropriate vehicle for protecting the best interests of children in complex matters of surrogacy. Concern has been raised about the appropriateness or desirability of having local law which seems philosophically opposed to the Family Law Act, and it has not been proved beyond doubt that local legislation would not, in fact, be inconsistent with family law. As we all know, Commonwealth law overrides any inconsistent State or Territory law - and I do not need to point out that it is extremely desirable that differences between States and between States and the Family Law Act are minimised. The CLRC report points out that any conflict relating to the care and control of the child will be determined by reference to the Family Law Act, whether or not a parentage order has been made. I think this is one area of law where there really should be a nationally consistent approach and there does need to be more community debate.

A further issue that has been raised is the difficulty in distinguishing between so-called altruistic surrogacy and commercial surrogacy. Indeed, it does appear that there are significant commercial benefits to be derived by someone in surrogacy arrangements. Furthermore, the distinction itself is often false, because in reality the complexities of human nature could make it likely that a woman would act as a surrogate with both an intent of altruism and a wish not to be out of pocket - or even to improve her position - as a consequence. In the words of the Community Advocate, again:

The concept of altruistic surrogacy is fraught. There are financial benefits to the fertility clinics who have no reason to be concerned about the interests of the child and every reason to find people suitable for their programs. There are emotional complications for all the adults involved and potential corruption of intended altruism. It is therefore problematic to think that any arrangement is without commercial elements, without financial implications and without emotional exploitation. These issues can emerge prior to conception or at any stage after the birth.

The Community Advocate also believed that a child has the right to know all the details of their conception and birth.

Mr Speaker, many of the statements that have been made in this place regarding altruistic surrogacy show a lack of understanding of the potential for financial, emotional and psychological exploitation and abuse of adults and the child. It is clear that this legislation is fraught with difficulties. While I acknowledge the rather unfortunate situation that four people now find themselves in, I do not believe that we, as legislators, should be blackmailed into making laws in an area as complex as this because the previous Assembly created a legal nightmare.

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