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Legislative Assembly for the ACT: 2000 Week 5 Hansard (11 May) . . Page.. 1508 ..
MS CARNELL (continuing):
To me, it is both illogical and cruel that non-commercial surrogacy is legal but when the baby arrives he or she cannot be recognised as the child of the genetic parents, even when the birth parents are in total agreement. However, amending the Artificial Conception Act to 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 most in this place, would 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 the child. They do not change the parentage of that child.
The Adoption Act 1993, however, says that the birth parents cannot name whom they want to adopt the child unless those people are relatives of the child. This means that a surrogate parent or birth parents who are not related to the genetic parents would not be able to direct an adoption to the genetic parents. The birth parents can nominate a specific person for adoption of the child only if they are a grandparent, sibling, aunt or uncle of that child. Where this is not the case, the child would come under the effective guardianship of the Director of Family Services, who can place the child as he or she sees fit. Hence the genetic parents would have no special claim to that child in adoption. They may have a difficult time in obtaining custody, guardianship or access to their genetic child.
Even if this were not the case, the adoption process is based on finding parents for a child that is already born. It is assumed that the birth parents and the 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. The genetic parents and the birth parents are obviously going to be either related or very good friends.
Because of these problems, I am proposing, through this bill, to take another approach. As I have said, it would enable the genetic parents to obtain legal parentage of a child who was born to another woman as a result of a non-commercial surrogacy agreement. I believe that the most appropriate way to go is to provide that the Supreme Court make 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 very strict circumstances.
This order can 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 have full understanding of exactly 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 birth couple must have assessment and counselling from a service other than the service
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