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FAQ's
We’ve referenced a variety of experts and research to bring you answers to some of the questions which people frequently ask in relation to surrogacy legislation in general:
2. How does surrogacy compare with adoption?
3. What harm could surrogacy cause to the child?
4. What harm could surrogacy cause to the birth-mother?
5. What harm could surrogacy cause to other children?
6. Does the Surrogacy Bill 2009 allow for same-sex partners to obtain a surrogate child?
7. Does the Surrogacy Bill 2009 legalise same-sex parenting in other contexts?
8. What harm could there be from same-sex parenting?
9. Does it really matter if a child is deprived of a mother through surrogacy?
10. Does it matter if a child is deprived of a father by surrogacy?
11. What does the public think about same sex parenting?
12. Does surrogacy violate the United Nations Declaration on the Rights of the Child?
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In essence, surrogacy is where a woman carries somebody else’s baby, and agrees to give that baby back after birth – either for payment (“commercial” surrogacy) or as a favor (“altruistic” surrogacy).
The technique: In surrogacy, adults who cannot conceive (either because they are infertile or, under the Surrogacy Bill 2009, because they are a same-sex couple or a single person) use assisted reproduction techniques (such as IVF or artificial insemination) to create a baby using their own, or other adults’ sperm and eggs, implanted in the womb of a “surrogate mother”.
The contract: Surrogacy is the making of an arrangement before the conception of a child, in which a woman who intends to carry a child during pregnancy (the surrogate mother or birth mother) agrees that she will hand over the child after his or her birth to be raised by the person or persons who commission her to carry the child (the intended parent or parents).
For the definitions of surrogacy and related terms in the Surrogacy Bill 2009 see Part 3 Key concepts HERE.
2. How does surrogacy compare with adoption?
Surrogacy should be clearly distinguished from adoption. Adoption, as provided for in Queensland by the Adoption Act 2009, is an arrangement made after the birth of a child – in the best interests of the child. The process of adoption allows birth parents who feel unable to support or rear the child, to decide freely to give up their position as the legal parents of a child and allow other persons to become the legal parents of the child.
Adoption primarily serves the needs of an existing child for parents who can raise him or her. Adoption also may serve the needs of relinquishing parents who freely decide that they are not able to raise a child, and the needs of well-balanced, healthy and committed childless couples (married or in stable de facto relationship according to the Adoption Act 2009) who wish to raise a child. However the needs of the relinquishing parents and adopting parents are secondary. The primary concern in adoption is the best interests of an existing child.
Surrogacy, by its very nature, reverses the order of these concerns. Surrogacy primarily serves the wishes of the intending parents (or parent) to procure a child. In surrogacy, the child, who does not yet exist, is brought into existence as the result of an arrangement between the intending parents (or parent) and the surrogate mother. The child is the object of this arrangement, essentially treated as a “deliverable commodity”. Surrogacy subordinates, to the interests of the intending couple, the best interests of the child by ignoring the natural bonding of a child to the birth mother during pregnancy as well as his or her sense of identity, family and belonging.
A law permitting surrogacy does this by facilitating the transfer of legal parentage from the birth parents to the intending parents giving effect to an arrangement made before the conception of a child. It puts into effect a plan that intentionally fractures the child’s life by separating the gestational mothering of the child from its subsequent upbringing.
The eminent Australian/Canadian medical ethicist Professor Margaret Somerville writes:
From a larger perspective, all surrogacy is a bad idea ethically. It breaks what is arguably the most intimate of all bonds, that of mother and child. That bond is important to each of us, as individuals, and to society itself. It is no answer to say we allow adoption. Adoption is a regrettable necessity in unplanned circumstances and, as such, does not damage the societal value of the bonding of parents – in particular, mothers – to their children. The opposite is true of officially approved surrogacy – no matter how well-intentioned. Before the child is even conceived, the plan is for the woman who carries it to give it away.
3. What harm could surrogacy cause to the child?
Surrogacy may result in harm to the child whom the birth-mother relinquishes, breaching a natural bond and potentially leading to identity problems in the child.
Children born as a result of a surrogacy contract are likely to share the “identity bewilderment” experienced by children born as a result of donor insemination. Recent accounts written by adults who were conceived as a result of donor insemination describe the profound problems of identity and belonging they experienced both as children and as adults.1 Some of these problems were related to secrecy – not being told the truth about their origins but intuiting that they were different. However, problems also persisted after the truth was revealed or discovered, including a longing to know the absent genetic parent.
Issues of identity, belonging and wantedness are likely to be important for children conceived as a result of a surrogacy contract. They may yearn to know, “Who am I? How could my mother give me away?”
In a submission to the New South Wales Legislative Council Inquiry into Altruistic Surrogacy in 2008 by Tangled Webs Inc., this group of donor-conceived persons argue, on the basis of their lived experience, that:
A child’s best interests are served when it is conceived and gestated by; born to and nurtured by, one mother. To fragment maternal roles through ova donation/gestational surrogacy is to deny a child its entitlement to a whole mother.
These voices should be sufficient to dissuade the Queensland Government from proceeding with the Surrogacy Bill 2009 because they most clearly represent the interests of those children who may be born as a result of the bill.
It must be kept in mind that the Bill would impose this fragmentation of parenthood on the child as a result of an intentional plan formed before the conception of the child, not unavoidably encountered through the exigencies of dealing, after the fact, with a crisis pregnancy.
Other harms to the child that could follow under the Bill include the possible risk of rejection by one or both parties due to disability or other unwanted characteristics. The very fact of “commissioning” a child tends to reduce the child to an object rather than a person in his or her own right. The Bill reaffirms the right of the gestational mother to “manage her pregnancy”.
This includes the possibility of terminating the pregnancy by abortion. Regardless of the limited nature of legal abortion in Queensland, nothing would prevent the birth mother travelling to Victoria or elsewhere where there are no restrictions on abortion. A gestational mother who was a party to a surrogacy agreement could abort the pregnancy in the event of a prenatal diagnosis of disability or imperfection or the non-preferred sex with or without the consent or urging of the intending parent or parents, although she could not be required to do so. A child born with a disability could be rejected by both the commissioning parents and by the birth mother, with no-one willing to take parental responsibility for the child.
Harm may arise if more than one baby were to be conceived when only one baby was desired. In 2001 a UK surrogate mother carrying twins sued a Californian couple who disavowed the contract when she refused to abort one of her unborn babies. Then again, the surrogate mother might take action to end the life of one or more of the unborn twins against the wishes of the intending parents.
A persuasive case against permitting surrogacy was published in the progressive French journal Liberation by Myriam Szejer, a child psychiatrist and Jean-Pierre Winter, a psychoanalyst.
The importance of epigenetics on the physical and psychological development of the fetus is known, as well as the emotional bond between the pregnant woman and the child she is carrying and the deleterious effects of the separation mother and baby at birth… In the case of surrogacy this separation is legally programmed and not the result of a tragedy of life, as in adoption.
We should oppose a practice of which the child is the victim and which opposes the interest of the mother against that of the child, and even of other players. We need to be concerned about the future of all the players in surrogacy: the mother, the baby, but also the husband of the surrogate mother or her own children. The whole family is affected by this act, as would society be as a result of the transformation of the laws on filiation that would derive from it.”
From: “Who Am I? Experiences of Donor Conception” Idreos Education Trust, 2006.
4. What harm could surrogacy cause to the birth-mother?
The surrogacy agreements that would be facilitated by the Surrogacy Bill 2009 would reduce a woman’s experience of gestational motherhood to a contractual service. This depersonalising of the natural human experience of pregnancy may prove harmful to the birth mother, her family (including her husband and her children) and to the child she is carrying.
In January 1987 the New York Times reported on some of the problems emerging in relation to surrogacy.
A new study on 30 women who had babies as surrogates, for example, found that three of the women were so distraught after giving up the babies that they needed therapeutic counselling. Such psychological counselling is now the exception rather than the rule, a situation some researchers criticise. But interviews with the three women before and during the pregnancy produced no obvious indications that difficulties lay ahead.
‘We cannot predict with any certainty how a surrogate mother will do psychologically, or whether she will decide to keep the child,’ said Philip Parker, the Detroit psychiatrist who has interviewed almost 500 women who sought to become surrogate mothers.
This suggests that the counselling required by the Surrogacy Bill 2009 before a surrogacy arrangement is entered into would not be sufficient to guarantee that birth mothers may not be adversely affected by the surrogacy process.
The formation of a profound bond between mother and child is a natural process that is stimulated, in part, by the hormone oxytocin associated with birth and breast feeding. Surrogacy involves making a decision when the woman is not subject to such influences – before the conception of the child – and then being required by a legal contract to carry out this decision when she is subject to these natural emotions. It is unjust to women to seek to bind them in advance to a decision which may cause them unforeseen but profound distress when it is time to act on it.
This concern applies equally to commercial and altruistic surrogacy and is not eliminated by retaining a birth mother’s right to withhold consent to the transfer of parentage after the birth. Even in this case the very existence of the surrogacy arrangement creates perhaps irresistible pressure to complete the arrangement even if – as proposed in the Bill – the formal right to decline to relinquish the child is retained.
In the case of altruistic surrogacy, the problem may be exacerbated if the birth mother is going to continue to have any close contact with the child, as would be the case with a relative or close friend acting as surrogate mother. This is likely to increase the bond between the birth mother and the child and create confusion and distress for all parties.
On the other hand, the unenforceability of surrogacy contracts in the Queensland Bill mean that the intending parents can change their minds and walk away, leaving the surrogate mother responsible for a baby she did not want to keep.
5. What harm could surrogacy cause to other children?
Surrogacy also could cause harm to other children of the birth mother. Existing children of the woman acting as a surrogate mother may well form a relationship with the new child in the surrogate mother’s womb. These children may then suffer grief on learning that the unborn baby is to be given away and may fear that they also may be given away.
Surrogacy undermines the status of children in general by allowing the very existence and life of the child to be the object of a contract – whether enforceable or not – between parties. The notion that a child’s parentage can be determined by a contract, rather than by birth or an adoption procedure in which the best interests of the child are paramount, is subversive of the child’s right to identity and security.
6. Does the Surrogacy Bill 2009 allow for same-sex partners to obtain a surrogate child?
The Surrogacy Bill 2009 proposes that there would be no limits on who could undertake altruistic surrogacy apart from an age limit of 25 years and the requirement that any intending parents who are women be eligible on medical grounds. The Bill’s Explanatory Notes state:
The Bill does not restrict who can enter into a surrogacy arrangement. This means that a couple, either married or de facto (same-sex or heterosexual) or a single person (male or female) may be the intended parent/s in a surrogacy arrangement and then subsequently apply for a parentage order.
The Bill, bizarrely, proposes that any single man or male homosexual couple who wish to be an intending parent or parents be deemed to have a “medical or social need for a surrogacy arrangement”. This assumes that the simple desire of a single man or two male homosexuals to procure a child is sufficient to warrant surrogacy.
7. Does the Surrogacy Bill 2009 legalise same-sex parenting in other contexts?
The Surrogacy Bill 2009 amends the Status of Children Act 1978, introducing a presumption that the lesbian partner of a woman who has a child by artificial insemination or IVF is the second legal parent of that child. Her name would be permanently recorded on the child’s birth certificate as a parent. The status of the lesbian partner as ‘parent’ would persist even in the event of the break-up of the relationship. These amendments would impose a legal fiction on the child that he or she has no father, but somehow was “parented” by two women.
An eminent world religious leader once said that “tolerance is a virtue that when taken to an extreme becomes a vice.” Of course, if same sex parenting and/or same sex marriage were legalised, society would be moving from a position of tolerance to one of approval and endorsement.
There is no doubt that if same sex parenting is legalised in the contexts of surrogacy, artificial insemination and IVF, that the next dominos to fall will be fostering and adoption. If same sex parenting is legally recognised by the states, this also will put pressure on the Australian Federal Government to legalise same sex marriage.
Because marriage and the formation of a family are two parts of a compound ‘right’, the homosexual lobby understands that being able to become a same-sex parent by surrogacy achieves the principal social good of marriage – the right to form a family – and that marriage itself will have to follow.
8. What harm could there be from same-sex parenting?
In addition to intentionally depriving a child of either a father or a mother, there is other evidence that allowing same-sex couples to procure a child through surrogacy would not be in the best interests of the child.
A key Australian study has shown significant detrimental outcomes from homosexual parenting.
Dr Sotirios Sarantakos, when Associate Professor of Sociology at Charles Sturt University, Wagga Wagga, NSW, undertook a number of studies on heterosexual and homosexual couples. In 1996 he published a paper, Children in three contexts, where he explored the relationship between family environment and behaviour of primary school children living in three family contexts – married heterosexual couples, cohabiting heterosexual couples and homosexual partners.2
The major finding of the study was that family type did make a significant difference to the children’s school achievements. Children in families where their biological parents were married to each other scored best of the three groups in language ability (7.7), mathematics (7.9) and sport (8.9). Children of cohabiting heterosexual couple families generally did next best in these areas (6.8, 7.0 and 8.3), while children of homosexual partners scored lowest (5.5, 5.5, 5.9). In class behaviour more children of homosexual partners were reported to be timid and reserved, unwilling to work in a team or talk about family life and holidays. In general they felt “uncomfortable when having to work with students of a sex different from the parent they lived with”. Sex identity was reported by teachers to be a problem area for some children of homosexual families. Sarantakos cautiously concludes that “married couples seem to offer the best environment for a child’s social and educational development”.
Advocates of parenting by homosexual partners frequently claim that about 50 studies have been done “proving” no difference in outcome between children raised by married couples or by homosexual partners. Any social science study depends for its validity on following rigorous statistical and research procedures. Dr Robert Lerner and Dr Althea Nagai, experts in quantitative analysis, after dissecting each of 49 of such studies found at least one fatal research flaw in each study.3 These studies are therefore no basis for good science or good public policy.
In her book Children as Trophies? 4 British sociologist Patricia Morgan reviews 144 published studies on same-sex parenting and concludes that it fosters homosexual behaviour, confused gender roles, and increased likelihood of serious psychological problems later in life.
US academic Professor Lynn D Wardle shows even from those studies which conclude in favor of homosexual parenting that there is data showing that homosexual parenting may be harmful.5 There is a greater incidence of homosexual orientation in the children raised by homosexual partners with resulting problems including suicidal behaviour, promiscuity, etc. There is also a greater incidence of anxiety, sadness, hostility, defensiveness and inhibitions (some of these especially among boys of lesbian mothers).
A recent meta-analysis by two gay activists failed to support the “just like other children” myth. In 2001, Judith Stacey and Timothy J. Biblarz, both supporters of gay parenting, published a study entitled, “(How) Does the Sexual Orientation of Parents Matter?” . In it they re-examined 20 studies of same-sex parenting that had supposedly shown no difference, and charged their authors with ignoring the differences they had indeed found. There were differences: children raised by parents with same sex attraction showed empathy for “social diversity”, were less confined by gender stereotypes, more likely to have confusion about gender identity, more likely to engage in sexual experimentation and promiscuity, and more likely to explore homosexual behaviour.
US clinical psychologist Dr Trayce Hansen found that 14% of children raised by same-sex parents identified as homosexual by late adolescence or early adulthood. As the most reliable surveys place the incidence of homosexual identification at approximately 2% this means that being raised by same-sex parents makes it 7 times more likely that a child will identify as homosexual.
The evidence of Professor George Rekers, as an expert witness, has been instrumental in the success of several US court actions defending US state laws excluding homosexual adoption or fostering as having a “rational basis”. Rekers is Professor of Neuropsychiatry and Behavioral Science at the University of South Carolina School of Medicine.
Professor Rekers states:
In a household with a homosexually-behaving adult, the foster child would be exposed to additional stress with the impact of the significantly higher rates of psychological disorder (particularly affective disorders such as depression), suicidal ideation, suicide attempt, suicide completion, conduct disorder, and substance abuse in homosexually-behaving adult.
Homosexual partner relationships are significantly and substantially less stable and more short-lived on the average compared to a marriage of a man and a woman, thereby inevitably contributing to a substantially higher rate of household transitions in foster homes with a homosexually-behaving adult.
Homosexual foster-parent households lack a daily resident model of either a mother or a father, lack the unique contributions of either a mother or a father to childrearing, and lack a model of a husband/wife relationship which is significantly healthier, substantially more stable socially and psychologically, and is more widely approved compared to homosexual lifestyles. The best child adjustment results from living with a married man and woman compared to other family structures.
It is clearly in the best interests of foster children to be placed with exclusively heterosexual married-couple foster families because this natural family structure inherently provides unique needed benefits and produces better child adjustment than is generally the case in households with a homosexually-behaving adult.
Dale O’Leary in his book One Man, One Woman discusses “science, myths and same-sex parenting”. He concludes:
As more persons with SSA [same-sex attraction] acquire children, society will increasingly be pressured to ignore the problems caused by same-sex parenting — just as it ignores the problems caused by divorce — and join in the pretence that that having two mommies is just the same as having a mommy and a daddy. But no matter how many people praise ‘family diversity’, children being raised by parents with SSA will always know that it’s not the same, and someday they will resent how their needs have been sacrificed for the sake of a social experiment. In a sad irony, the more that cultural elites insist that there is nothing wrong with their situation, the more these children will feel guilty about resenting it, and this guilt will lead them to conclude that there must be something wrong with them.
A 30 member multi-party commission of the French National Assembly on the Family and the Rights of Children commented in its 2006 report on “research on children raised by same-sex couples” that the studies showed an “absence of any ill effects on the children”. However, the commission stated that the “scientific nature and the representation of the samples of the populations studied were broadly criticized and contested during the hearings… the lack of objectivity in this area was flagrant.”
The commission endorsed the statement of an expert witness on adoption:
Inasmuch as there is absolutely no reason to doubt the educative and emotional qualities of homosexual parents, we do not yet know all the effects on the construction of the adopted child’s psychological identity. As long as there is uncertainty, however small, is it not in the best interest of the child to apply the precautionary principle, as is done in other domains?
Surrogacy, and especially same-sex surrogacy, is not in the best interest of a child and therefore must be opposed.
2. Sarantakos, S, “Children in three contexts”, Children Australia, 1996, Vol 21, No 3.
3. Lerner, Robert and Nagai, Althea, 2001, No Basis: What the Studies Don’t Tell Us About Same-Sex Parenting, Marriage Law Project, Ethics and Public Policy Center, Washington, DC, 2003.
4. Morgan P., Children as trophies? : examining the evidence on same-sex parenting, Christian Institute, Newcastle, 2001.
5. Wardle, Lynn D, 1997, “The Potential Impact of Homosexual Parenting on Children”, University of Illinois Law Review, Vol 1997, Issue 3, p 833.
9. Does it matter if a child is deprived of a mother through surrogacy?
Allowing male same-sex couples or single men to procure a child by surrogacy would intentionally deprive a child of the care and love of a mother.
W. Bradford-Wilcox writes:
Mothers have a distinctive ability to understand infants and children. Mothers also excel in interpreting their children’s physical and linguistic cues. Mothers are more responsive to the distinctive cries of infants. They are better able than fathers, for instance, to distinguish between a cry of hunger and a cry of pain from their baby, and better than fathers at detecting the emotions of their children by looking at their faces, postures, and gestures … adolescents report that their mothers know them better than their fathers do.
In sum, mothers are better able than fathers to read their children’s words, deeds, and appearance to determine their emotional and physical state. This maternal sensitivity to children helps explain why mothers are superior when it comes to nurturing the young, especially infants and toddlers. Because they excel in reading their children, they are better able to provide their children with what they need—from a snack to a hug—when they are in some type of distress.
Psychologist A.D Byrd writes: “The critical contributions of mothers to the healthy development of children have been long recognised. No reputable psychological theory or empirical study that denies the critical importance of mothers in the normal development of children could be found.”
10. Does it matter if a child is deprived of a father by surrogacy?
Allowing female same-sex couples or single women to procure a child by surrogacy would intentionally deprive a child of the care and love of a father.
Girls whose fathers left the family early (before age 5) were five times more likely in the US and three times more likely in New Zealand to become pregnant as a teenager compared to girls from traditional families.6
Male adolescents in all types of families without a biological father (mother only, mother and stepfather, and other) were more likely to be incarcerated than teens from two-parent homes, even when demographic information was taken into consideration in analyses. Youths who had never lived with their father had the highest odds of being arrested.7
Bradford-Wilcox again:
Fathers excel when it comes to discipline, play, and challenging their children to embrace life’s challenges… Typically, fathers engender more fear than mothers in their children because their comparatively greater physical strength and size, along with the pitch and inflection of their voice, telegraph toughness to their children… Engaging in rough physical play with dad teaches children how to deal with aggressive impulses and physical contact without losing control of their emotions…
Compared to mothers, fathers are more likely to encourage their children to take up difficult tasks, to seek out novel experiences, and to endure pain and hardship without yielding. Fathers are more likely than mothers to encourage toddlers to engage in novel activities, to interact with strangers, and to be independent; and as children enter adolescence, fathers are more likely to introduce children to the worlds of work, sport, and civil society.
6. Ellis, B., Bates, J., Dodge, K, Fergusson, D., Horwood, L.J., Pettit, G. & Woodward, L., “Does father absence place daughters at special risk for early sexual activity and teenage pregnancy?” Child Development, 2003, Vol 74, 801-821.
7. Harper, C. andMcLanahan, S., “Father absence and youth incarceration” (2003: Center for Research on Child Wellbeing) Working Paper 99-03.
11. What does the public think about same sex parenting?
A Galaxy Research opinion poll which surveyed 1,053 Australians in November 2009 asked this question: “Ideally, wherever possible, should children be raised by their biological mother and biological father?”
The research found that 86% of Australians agree with this statement.
12. Does surrogacy violate the United Nations Declaration on the Rights of the Child?
Principle 6 of the Declaration on the Rights of the Child states that:
The child… shall, wherever possible, grow up in the care and under the responsibility of his parents; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.
The “exceptional circumstances” in view here are circumstances which indicate that it is in the child’s best interests to be separated from his mother. The desire of other adults to procure a child, or the existence of a surrogacy arrangement as proposed by the Surrogacy Bill 2009 would not qualify as “exceptional circumstances” justifying violation of this principle of international law.
The surrogacy arrangements proposed by the Bill would be agreements made before the conception of a child that he or she will be “separated from his mother” soon after birth. Such arrangements would be a serious violation of the natural rights of the child as well as the rights of the child under international law.
The United Nations Convention on the Rights of the Child was ratified by the Australian Government just 20 years ago, in 1990. Therefore the principles are binding upon the States of Australia, including the State of Queensland.
The fact that other States may have failed in their obligations under these international UN obligations is no justification for Queensland making the same mistake.
13. What are the legal flaws in the Surrogacy Bill 2009 and is there a better solution to protecting the interests of children in these situations?
Why change a law that is there to prevent serious harm?
All surrogacy has been outlawed in Queensland for 22 years under the Surrogacy Parenthood Act 1988 in recognition of the impact it has on the family unit and its impact or potential impact on the child. Why change a law at all, if it is there to prevent significant harm – if, as acknowledged in this Bill’s Explanatory Notes (p.13):
Surrogacy arrangements potentially have profound and long‑lasting psychological and social implications for the parties involved and the child born as a result of the arrangement.
Given the profound implications of surrogacy, given the inherent wrong of setting out, before conception, to separate a child from its birth mother, what sort of reckless government would seek to facilitate surrogacy?
Certainly, the Explanatory Notes to the Bill make all the proper gestures of concern for the child, stating at Page 5:
The Bill is underpinned by the main principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and the rest of his or her life, are paramount.
Unfortunately, this is the wrong starting point. This assumes that permission of a surrogacy arrangement is part of a child’s best interest. No – the acceptance of surrogacy is the acceptance of premeditated harm to a child. The assumption must be that intentionally separating a baby from its birth mother is damaging to the child’s identity and wellbeing.
What motivates this change in the law, then? By the radical nature of this Bill, it would appear to serve the agenda of same-sex couples who want the right to form a family outside of the natural structure of mother-father-child.
Putting the wishes of adults first, the needs of the child second:
Another principle under which the Act is to be administered is that:
A child should be cared for in a way that promotes openness and honesty about the child’s birth parentage. The Bill also includes principles that the autonomy of consenting adults in their private lives should be respected and that the long‑term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted.
These are inherently conflicting presumptions. The preservation of the fundamental rights of the child to have his own mother and father is not achieved by allowing the “autonomy” rights of adults to take priority. The Bill puts adults first and children second. There is no valid basis to put the interests of one human being ahead of the other in circumstances where it is acknowledged that there can be long term psychological difficulties as a result of the permitted arrangements.
Toothless requirements that need not be observed:
The Explanatory Memorandum mentions the “safeguards” in the Bill, for example the requirement that the intending parents and the surrogate mother be at least age 25 and that all parties to an altruistic surrogacy arrangement obtain counselling and independent legal advice before proceeding.
However, under this Bill there are no penalties if these rules are not followed by those entering into an altruistic surrogacy arrangement. The Bill is in fact a “toothless tiger” in respect to any altruistic surrogacy arrangements.
For example, the surrogate mother could be a young girl of 18 or perhaps even 16 who decides to enter into an altruistic surrogacy agreement with all her expenses paid (in order to qualify for the $5,000 Commonwealth Government baby bonus payable to the birth mother) and does not obtain counselling or legal advice first.
Should she hand over the child to the commissioning parents as agreed, the Bill even gives discretion to the Childrens Court to waive the requirements of the law and grant a parentage order in favor of the intending parents if the disposition will be for the wellbeing, and in the best interests, of the child, as long as there are “exceptional circumstances”.
The illusion that same-sex parenting is the same, to a child, as a mother and father:
Concerning single and same-sex surrogacy, the Explanatory Memorandum says that “to exclude a couple [from being intending parents] on the basis of their relationship status or a person because the person is single is discriminatory and fails to recognise the many types of family groups that exist today.” Of course, not all types of family groups are equal – a mother and father caring for their own child is optimum, as the bulk of valid research shows. This gives the lie to the Bill’s claim that one of its main objects is “to safeguard the child’s wellbeing and best interests.”
The only research cited in the Explanatory Memorandum on the welfare of children raised by same-sex parents is biased and greatly flawed. This study purports to be a review of the literature on the topic. However, it is a review of literature which supports same-sex parenting written by authors who support same-sex parenting. The authors actually included their own published work in their review, but omitted any serious references which challenged their position. It is scandalous that this is the standard of research the Queensland Government relies on to introduce such a radical reform of social policy.
The fact that surrogacy contracts under the Bill are unenforceable under Queensland law, except to the extent that the birth mother must be paid her expenses if she hands over the child, underlines the problematic nature of this issue.
The intending parents can change their minds and walk away, leaving the birth mother literally holding the baby. If the Bill proceeds, surely in this situation the birth mother should receive child maintenance from the commissioning parents until the child turns 18.
If the Bill proceeds, a conscientious objection clause for medical professionals needs to be included along the following lines: “No person or body is under any obligation under this or any other law to participate in any procedure in relation to a woman becoming pregnant for the purpose of surrogacy.”
A better way to deal with the issue of succession rights:
One of the guiding principles of the Bill is to ensure that “each child born as a result of a surrogacy arrangement enjoys the same status, protection and support irrespective of the circumstances of the child’s birth.”
One legitimate concern regards the rights of a child under succession law. The interests of any child born under a surrogacy arrangement, whether altruistic or commercial, can be protected by appropriate amendments to the Succession Act.
The Succession Act was amended to make provision for the rights of a step‑child of a deceased person to apply for maintenance under the estate of a deceased person (see Section 40A)
It would seem a reasonably simple step to make further amendment to the Succession Act 1981 to provide that a child born of a surrogacy arrangement, whether altruistic of commercial, has the right to bring a claim in respect of the estate of an “intending parent” as defined in the Surrogacy Bill 2009. In this way, the rights and interests of the child are protected, an important point validly raised in the course of this debate.
In fact, the wording of this amendment to the Succession Act should grant inheritance rights to “any person who, although not a legal child of the deceased, was raised by the deceased for all or a substantial part of his or her childhood,” so it applies equally to other children who have been raised by someone who is not a legal parent.
No need for a new system of parentage orders: In the event of a child being born in a surrogate arrangement, what is to be done about confirming the legal parents of that child?
We maintain that the Government should not recognise the surrogacy arrangement – any contract for surrogacy remains void – but needs to defend the interests of the unfortunate child.
The Government should recognise the fait accompli that surrogacy arrangements have been made; that children have been born as a result of those arrangements; that these children are the innocent victims of the arrangement and that Parliament should take steps to protect their interests.
That would not be validating surrogacy, but recognising the need for those children to be protected and not to be victimised by virtue of the acts of adults.
The Surrogacy Bill makes unnecessary provision for the Children’s Court to make a parentage order, the effect of which is that the persons nominated by the court become the legal parents of the child. The Bill provides a mechanism for amendments to the birth registration pursuant to the order.
This regime is unnecessary because the Family Law Act already allows any person who is concerned with the care, welfare and development of a child to apply to a Federal Court for a parenting order. If the court judged that it was in the best interests of the child, intending parents who had commissioned a surrogate child could well be given parenting rights without the Queensland Government having to create a regulatory regime under which state courts would adjudicate. And it would be done only for the sake of the child, not as an affirmation of an adult’s desire and demand to obtain a child by surrogacy.
The Explanatory Memorandum of the Bill claims that this is not good enough as a parenting order ends when the child is 18. However, that is the age at which biological parents also have no legal authority over their children. Why should it be any different for surrogate parents? The Explanatory Memorandum also says that parenting orders “are not final and can be varied at any time”, but presumably that would be the case only if it were in the best interests of the child – and isn’t that supposedly the main guiding principle of this Bill?
Conclusion – a less harmful alternative:
We oppose any social acknowledgement of surrogacy, because it is inherently wrong to willfully separate a child from his birth mother and wreck his sense of identity and belonging. However, if the Queensland Government insists on decriminalising altruistic surrogacy, then it should do so by amending the current law – rather than creating a new regulatory regime which would give the State’s imprimatur to the practice.
Further, it should decriminalise surrogacy only for infertile heterosexual couples, asserting the rights of a child to have the closest possible to a mother and father figure in their life. Heterosexual couples would be free to make their own private arrangements, but at least the State would not be merely tolerating, not endorsing, altruistic surrogacy.
We prefer that the Surrogacy Bill 2009 be rejected. Instead, by keeping the current law and making the above amendments to the Succession Act combined with the existing system for parenting orders through the Federal Courts, the legitimate interests of a surrogate child will be protected, and such children will be given effectively the same status, protection and support as any other children born in uncertain family circumstances.
Afterword: the Attorney General fails to justify this Bill – interview with Kids Rights Count on ABC Radio:
Listen here (7MB, requires QuickTime) to Kids Rights Count spokesman, Dr David van Gend, and Qld Attorney General Cameron Dick interviewed on the Surrogacy Bill 2009 on ABC radio, Feb 3rd 2009.
The Attorney General defended the Government’s Surrogacy Bill on two grounds – but both of his legitimate points can be resolved without resorting to this radical, culture-deforming piece of social engineering.
First, Mr Dick raised the concern that the current laws in Queensland carry a possible prison sentence for anybody engaging in surrogacy – even altruistic surrogacy. Both political parties agree in wanting to remove the prospect of imprisonment for the adults in charge of a surrogate baby – and so, indeed, do we at Kids Rights Count, because it is not in the interests of a child to have his or her carers in prison. However, that change can be achieved by a simple amendment to the existing surrogacy law of 1988 – we do not need a new law that smuggles in radical and harmful social experiments under the respectable cloak of decriminalising altruistic suggogacy.
Second, Mr Dick referred to the need to treat all kids equally – for instance the issues of a surrogate child’s right to inherit from a deceased surrogate ‘parent’. Also the issue of legal certainty of guardianship for a surrogate child (so an adult(s) has legally secure rights and responsibilities in the care of a surrogate child, regarding health matters, education etc).
Again, we agree – the child should not be further disadvantaged just because of the disturbed circumstances of her creation and birth. Both these issues are readily sorted out without recourse to this radical new surrogacy Bill.
1. Re inheritance: amendments can be made to the Succession Act, as outlined above, to allow a surrogate child, like other children whose parental circumstances are irregular, to have a claim on the estate of those acting as their ‘parents’.
2. Re certainty of guardianship – such situations are already being adequately resolved through the Family Court, under federal legislation, and there is again no justification for introducing the surrogacy-any-two-blokes-can-have-their-own-baby-Bill 2009 in Queensland.
No, the cultural wrecking-ball of the Surrogacy Bill 2009 is not justified by the Attorney General’s arguments. This Bill is not only wrong, it is unnecessary.
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