Queensland needs ‘real world’ surrogacy laws

Should we expect the Government to set guidelines about who can and cannot be a surrogate and in what circumstances?

Should surrogates be permitted to charge for their services and should others be able to profit from introducing prospective parents to a surrogate? Does the Government have any part to play in regulating contracts between surrogate and intended parents?

Would valid surrogacy contracts allow intended parents to bypass adoption laws and become, at law, the parents soon as the birth has taken place? If not how do we reconcile the stringent vetting process applied to traditional adoptions with children born of surrogate mothers?

What happens if the intended parents separate before the birth? Who will get to determine whether or not particular medical tests are undertaken in utero? If a serious genetic deformity or health matter is discovered can the intended parents “opt out” or even, compel a termination?

Whilst the Attorney General Phillip Ruddock has called upon the states to adopt a uniform national policy on surrogate births his own federal jurisdiction is not a disinterested party.

Although surrogacy and adoption are both the purview of the state legislatures, unless children born of a surrogate mother become, at law, automatically the intended parents’ child at birth, the period from the birth of the child until its adoption remains within the exclusive Federal jurisdiction of the Family Law Act.

The present definition of parent under that act would recognise neither the intended mother nor father of a surrogate arrangement as parents unless they had been recognised by the adoption process.

What challenges does the concept of surrogacy hold for the Family Court and Federal Magistrates Courts administering the Family Law Act? These Courts already deal with extremely complex social and biological relationships and without change to the legislation would continue to do so in the same manner on a matter by matter basis based on the best interests of the child.

How they might determine a matter where the parental obligations and interest are solely the creature of contract not biology remains to be seen.

Reproductive science brings not only possibilities for otherwise childless couples but also challenges for legislators.

The difficulties of these challenges do not exclude state and territory legislators their “not in my backyard” attitude.

There is great merit in the Federal Attorney General’s suggestion of a common approach by the states however the interplay of state and federal legislation and the social and ethical issues that are part and parcel of surrogacy mean that the Commonwealth can not play the role of disinterested bystander.

What cannot be argued is that science has made it possible for childless couples to have babies through surrogates, if they choose to do so.

Queensland law says they cannot do it but science says they can. We need to have realistic laws which reflect modern society, and above all, laws which safeguard any children born through a surrogacy arrangement.