Federal Attorney-General Philip Ruddock recently urged the states to adopt a uniform national policy on surrogate births, and in doing so he has triggered a debate on an issue that pits science and childless couples against legislators.
The laws on surrogacy in Queensland provide a good snapshot of the gulf between scientific reality and legislation in much of Australia. Although scientific advances have made surrogate births a reality, Queensland’s current laws make it illegal for childless couples to have a child through a surrogate parent.
Queensland should recognise the need for national laws on surrogate births, and bring the state into line with the 21st century’s real world reality.
Although surrogacy is prohibited by the laws of some states, children will continue to be born of surrogate mothers in circumstances ranging from natural conception through a father who is one of the intended parents and whose mother is the surrogate, to the high tech where the biological parents are represented by anonymous donor egg and sperm carried by a “gestational surrogate” who is not one of the intended parents.
Despite the method at its core, surrogacy remains a realistic solution to the biological and emotional yearning to be a parent. The development of reproductive science has increased the options available to achieve that goal.
Everyone has heard of someone who has gone to extraordinary lengths to conceive or to adopt children. Why then the squeamish attitude of some state governments towards the existence and official recognition of surrogacy?
The states need to adopt a uniform national policy on surrogacy because Australia’s present laws do not reflect the reality of what science can offer childless couples. It is wrong that couples should be breaking the law by trying to have children.
In Queensland a surrogacy arrangement would subject any of the participants to a fine and penalty of up to three years imprisonment. Quite possibly such laws have the effect of simply shifting the complex issues surrounding surrogacy over the border.
Under the Surrogate Parenthood Act of 1988 not only is it illegal in Queensland to enter into a surrogacy arrangement for a child to be conceived or born in the state but, an offence is also committed if the participants are resident in Queensland at the time of reaching agreement regarding a surrogacy arrangement.
This encompasses not only arrangements where there is payment but, also those arrangements which we sometimes hear about in the press where one sister will carry a baby for her childless sibling. Do laws such as those in Queensland simply invite childless couples to seek out a jurisdiction where their wish for children can be fulfilled?
The issues surrounding surrogacy and its impact on the participants and any resultant children are complex and must be addressed with some urgency to do justice to the children born from such methods.
There are also numerous possible legal consequences to consider, such as the people the child recognises as mother and father not being legally regarded as such. They can't enroll them in school, and may experience difficulties in accessing government benefits.
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