Call for a National Inquiry into Surrogacy

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I had the good fortune to attend the 16th National Family Law Conference in Sydney in early October. The Conference is held every two years and provides an opportunity for assessment of the challenges facing practitioners working in family law and discussions about areas where reform is needed.

On Wednesday 8 October 2014 both the Chief Justice of the Family Court, Diana Bryant, and the Chief Judge of the Federal Circuit Court, John Pascoe, spoke about the challenges and opportunities facing their respective Courts.

Chief Judge Pascoe spoke about an issue of increasing national and international focus – commercial surrogacy. The speech was moving and while widely reported subsequently in the media, some of his key observations demand our continuing attention, including:

1. He gave detailed accounts of baby trafficking practices, including displaying a fruit box, equivalent to those used to transport babies, often resulting in the death of infants, described by the traffickers as “spoilage”;

2. Trafficking of pregnant women and the sale of children was a continuing;

3. He described international child surrogacy as “the new front line” in the trafficking and commoditisation of women and children;

4. In the “market” of children and women, unregulated in many countries, vulnerable women have little bargaining power;

5. In this “new age” of reproductive trafficking, women are movable property, in many instances compelled to abandon their families and communities;

6. He questioned how the rights and best interest of children could be protected in such a market – where questions and doubts routinely exist about the parentage of the children and their nationality. The Chief Judge spoke of the potential for children to be “marooned”: stateless, parentless, awaiting a fate beyond their control;

7. The Chief Judge spoke of the practice in some countries of the unregulated importation of genetic material to be implanted in women, carrying the child intended for others. What hope does a child born in such circumstances have to have any knowledge of his/her genetic heritage?

8. The Chief Judge called for these issues to be urgently addressed by Parliament:

(a) noting that the concept of “family” has changed so dramatically and we need to respond to the changing realities in our international and national communities;

(b) that such a review should focus on the rights of the child, the surrogate mother and the commissioning parents, to find how best to protect the woman and the child and their families from improper practices;

9. The Chief Judge observed that while human rights are universal, we appear to accept women in overseas jurisdictions undertaking commercial surrogacy arrangements in circumstances where we make commercial surrogacy illegal in Australia. The Chief Judge also observed that there was little point in having legislation prohibiting commercial surrogacy in Australia if those laws were not enforced;

10. The Chief Judge called for a comprehensive national enquiry to consider commercial surrogacy and how best to protect vulnerable women and children.

The Attorney-General, the Honourable Senator George Brandis QC, was present that morning at the conference and spoke after Chief Judge Pascoe. The Attorney-General commented he had heard “loudly and clearly” the call for further consideration of these important issues.

The Family Law Council has recently concluded a report into matters relating to parentage under the Family Law Act. That wide ranging and comprehensive report, released in September 2014, (see our blog here) included a number of recommendations dealing with surrogacy issues.

Clearly, however, the call for wider and deeper consideration about these issues continues and urgent consideration of these practices must be taken.

Di Simpson is one of the Partners at DDCS Lawyers, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.