Surrogacy and IVF

While in the past surrogacy was illegal in Queensland, since June 2010 the Surrogacy Act 2010 (Qld) (“the Act”) has made altruistic surrogacy arrangements lawful in Queensland. In addition, it provides a mechanism for transfer of legal parentage from the surrogate to the person(s) wishing to have a child (the intended parent(s)). Commercial surrogacy – where a payment, reward or other material benefit of advantage (other than the reimbursement of the “birth mother’s surrogacy costs” (s11 of the Act) is made for entering into a surrogacy arrangement – remains unlawful. The paramount guiding principle underpinning the Act is that of the wellbeing and best interests of a child born as a result of surrogacy. The Surrogacy Act 2010 (Qld) allows a single person or a couple (heterosexual or same sex couples) to enter into an agreement with a woman, and her partner (if she has one), to become pregnant with the intention that the child will be relinquished to the intended parent(s). The Act also provides a mechanism for the intended parent(s) to be legally recognised as the parent(s) of the child. In order for the intended parent(s) to be legally recognised (via a parentage order, discussed below) it must be shown that the surrogacy arrangement was entered into when all the parties were over 25 years of age and the intended parent(s) are male or, in a heterosexual or lesbian couple the female(s) are not likely to conceive or give birth to a healthy child due to medical reasons. The arrangement must be entered into before the surrogate becomes pregnant and all parties must have obtained independent legal advice and counselling about the proposed arrangement, and evidence of this is required at the time a parentage order is applied for. For the purposes of the Act it does not matter how the surrogate conceives the child or if the child is genetically related to the parties. During the period of the pregnancy, the surrogate has the right to manage her pregnancy in the way she wishes. Although she cannot profit from acting as a surrogate, section 11 states that she is entitled to surrogacy costs. These include, for example, reasonable medical costs related to pregnancy and the birth of the child; counselling and legal costs associated with the surrogacy arrangement; actual lost earnings because of leave taken during pregnancy or following birth and any reasonable travel expenses incurred. The surrogacy arrangement itself is not legally enforceable; however, obligations to pay a surrogate’s surrogacy costs are enforceable unless she chooses not to relinquish the child to the intending parents. While the Act does not specifically deal with the situation where the surrogate decides she is unprepared to relinquish the child to the intended parents, there have been examples where parties have entered into these kinds of arrangements, and the arrangements have become difficult. For example, the Family Court case of Re Evelyn (1998) FLC 92–807 involved a child born to a surrogate mother who decided not to surrender her. The child was the genetic child of the surrogate mother and the husband of the couple who had contracted with the surrogate mother. Both sets of parents brought proceedings in the court, seeking that the child live with them. In hearing the application, the court applied the paramount principle of the ‘best interests of the child’. The court made clear that there is no presumption in favour of the birth mother, although in this case the court found that the child may be better placed with the surrogate mother’s family.

The Commercial Surrogacy Dilemma

In November 2009 the England and Wales High Court (Family Division) granted a parental order pursuant to s30 Human Fertilisation and Embryology Act 1990 in respect of twins who came to be in the custody and control of the applicants (Mr and Mrs A) through a surrogacy arrangement. The particularly unusual and interesting aspect of this case is that, on the evidence, Mr and Mrs A had paid expenses to the surrogate above and beyond those allowed by the legislation, thus creating a commercial surrogacy arrangement. Commercial surrogacy arrangements involve the payment of money to the surrogate mother in excess of those expenses which have been reasonably incurred pursuant to the surrogacy arrangement. This case is relevant to Queensland law because commercial surrogacy arrangements are also prohibited in Queensland and, as in the United Kingdom, the court cannot make a parentage order unless it is satisfied the surrogacy arrangement is not a commercial surrogacy arrangement.

Surrogacy - A Path of Obstacles

Surrogacy has become an effective and accepted form of reproductive technology. It enables couples, regardless of gender or sexuality, to achieve the dream of becoming a parent in circumstances where other forms of reproductive technology and adoption are either not possible or have failed. To its credit, the Queensland parliament has recently brought this state up to date by enacting surrogacy laws that are in line with the majority of statutes implemented throughout the country. The Surrogacy Act 2010 (Qld) allows for the court to make a parentage order in certain circumstances where parties have entered into a surrogacy arrangement. A parentage order effectively transfers parental rights from the birth mother (and her spouse or de facto if there is one) to the intended parents. The requirements which must be satisfied to obtain a parenting order are comprehensive and onerous, making the path to parenthood through a surrogacy arrangement by no means easy. At the heart of the surrogacy issue lies a question, the answer to which has shifted and continues to shift as reproductive technologies continue to increase in success, method and popularity - what is a parent? A recent decision of the Administrative Appeals Tribunal, Hudson v Minister for Immigration and Citizenship, brought to attention the meaning of the word ‘parent’ as it appears in s 16(2) Australian Citizenship Act 2007 (Cth) (‘the Act’). Section 16(2) deals with citizenship by descent and provides that a person born outside Australia may make an application to the Minister to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.

We need to talk about … economics

I want to take up the “economies” part of this conference's theme, “Materialities: Economies, Empiricism and Things,” and engage with those critics of the creative industries position within media, cultural and communication studies. There's certainly been a bit of (symbolic) attempted patricide on the creative industries side, but there has been an even stronger disavowal of parentage, even a bit of—always symbolic—attempted infanticide, on the other...

Surrogacy : competing interests or a tangled web?

Overseas commercial surrogacy is a legally challenging but commonly utilised form of assisted reproductive technology. Not only does it raise complex and competing policy issues, but it tests the relevant Family Law legislation which underpins parenting orders. Decisions handed down by the judiciary are inconsistent. Legislation is inadequate. But still the surge in surrogacy continues as surrogacy destinations such as India and Thailand continue to increase in popularity. Part one of this article addresses the competing interests of the illegality of overseas commercial surrogacy arrangements with the welfare of the child born as a result of such arrangements, and the inconsistent approaches taken by the judiciary. Part two concerns the interpretation of Family Law legislation by the courts in an attempt to provide intended couples and their children with certainty and finality, again resulting in inconsistent judicial decisions. Overseas commercial surrogacy is legally problematic, and intended parents need to be aware of its limitations.

Time for a national approach to donor conception in Australia

There is a growing recognition of the interests and rights of individuals conceived using donated gametes in assisted reproductive technology to information about their biological parentage. In Australia these rights vary between jurisdictions according to differing statutory provisions. In February 2011 the Senate's Legal and Constitutional Affairs References Committee published its report on Donor Conception Practices in Australia. The report recommended the development of a nationally consistent approach to donor conception and recommended the enactment of legislation in those Australian jurisdictions without legislation regulating donor conception. This editorial reviews the Senate Committee report and its recommendations and supports calls for a nationally harmonised approach to donor conception in Australia.

Genetics and the transformation of the personal

The shared nature of genetic information presents new challenges for legal understandings of the self. Within traditional legal discourses the individual is conceptualised as separate and autonomous. In contrast, the genetic individual is understood as inherently relational. This paper analyses the transformation of our understandings of the personal. The transformative processes are assessed through discussion of the changing meanings of privacy in the context of genetic information within families; changing views over access to information about biological parentage by children conceived through assisted reproductive technology; preimplantation genetic diagnosis and the changing context of reproductive decisionmaking.