LEGISLATIVE COUNCIL Standing Committee on Law and Justice Legislation on altruistic surrogacy in NSW Ordered to be printed 27 May 2009 according to Standing Order 231 Report 38 - May 2009 LEGISLATIVE COUNCIL Legislation on altruistic surrogacy in NSW New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice. Legislation on altruistic surrogacy in NSW : [report] / Standing Committee on Law and Justice. [Sydney, N.S.W.] : the Committee, 2009. – xix – 173 p. ; 30 cm. (Report ; no. 38) Chair: Christine Robertson, MLC. “May 2009”. ISBN 9781921286391 1. Surrogate mothers—New South Wales. I. Title II. Robertson, Christine. III. Series: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice. Report ; no. 38 306.8743 (DDC22) ii Report 38 - May 2009 STANDING COMMITTEE ON LAW AND JUSTICE How to contact the Committee Members of the Standing Committee on Law and Justice can be contacted through the Committee Secretariat. Written correspondence and enquiries should be directed to: The Director Standing Committee on Law and Justice Legislative Council Parliament House, Macquarie Street Sydney New South Wales 2000 Internet www.parliament.nsw.gov.au Email [email protected] Telephone 02 9230 3534 Facsimile 02 9230 3416 Report 38 - May 2009 iii LEGISLATIVE COUNCIL Legislation on altruistic surrogacy in NSW Terms of reference That the Standing Committee on Law and Justice inquire into and report on whether NSW legislation requires amendment to better deal with altruistic surrogacy and related matters and in particular: a. The role, if any, that the NSW Government should play in regulating altruistic surrogacy arrangements in NSW b. The criteria, if any, that the intended parent/s and/or birth parent/s should have to meet before entering into an altruistic surrogacy arrangement c. The legal rights and responsibilities that should be imposed upon the intended parent/s and/or birth parent/s d. The role that a genetic relationship between the child and the intended parent/s and/or birth parent/s should play in any altruistic surrogacy arrangement e. The legislative amendments that should be made to clarify the legal status of any child born of such an arrangement f. The rights that a child born through an altruistic surrogacy arrangement should have to access information relating to his or her genetic parentage, and who should hold this information g. The efficacy of surrogacy legislation in other jurisdictions and the possibility and desirability of working towards national consistency in legislation dealing with surrogacy h. The interplay between existing State and Federal legislation as it affects all individuals involved in, and affected by, surrogacy i. Any other relevant matter.1 1 LC Minutes No 63, 28 August 2008, Item 26, p 749 iv Report 38 - May 2009 STANDING COMMITTEE ON LAW AND JUSTICE Committee membership The Hon Christine Robertson MLC Australian Labor Party Chair The Hon David Clarke MLC Liberal Party Deputy Chair The Hon John Ajaka MLC Liberal Party The Hon Greg Donnelly MLC Australian Labor Party The Hon Amanda Fazio MLC Australian Labor Party Ms Sylvia Hale MLC The Greens Committee Secretariat Ms Rachel Callinan, Director Ms Merrin Thompson, A/Director Mr Jonathan Clark, Principal Council Officer Ms Christine Nguyen, Assistant Council Officer Report 38 - May 2009 v LEGISLATIVE COUNCIL Legislation on altruistic surrogacy in NSW Table of contents Chair’s foreword x Executive summary xi Summary of recommendations xvii Acronyms xix Chapter 1 Introduction 1 Inquiry terms of reference 1 Conduct of the inquiry 1 Submissions 1 Public hearings 1 Report structure 2 Chapter 2 Background 3 Definition and terminology 3 Key issues in surrogacy 4 The beliefs and attitudes around surrogacy 4 Eligibility criteria 4 Access and approval processes 4 Enforceability of surrogacy agreements 4 Transferral of parentage 5 Access to genetic information 5 Advertising and brokerage 5 Residency 5 Australian jurisdictions 5 Australian Standing Committee of Attorneys-General discussion paper 6 Current situation in Australian states and territories 9 New South Wales 9 Australian Capital Territory 10 Queensland 11 Victoria 12 South Australia 13 Tasmania 14 Western Australia 15 Northern Territory 16 Overseas jurisdictions 16 New Zealand 16 United Kingdom 17 Canada 18 vi Report 38 - May 2009 STANDING COMMITTEE ON LAW AND JUSTICE United States 19 Israel 22 Chapter 3 Beliefs and attitudes about the practice of surrogacy 23 Views on principle 23 Social construct of motherhood, fatherhood and family 25 Commodification of children and the right to have a child 27 The rights and best interests of the child 29 United Nations Convention on the Rights of the Child 29 Asserting the rights of the child pre-conception versus post-birth 31 Issues relating to the wellbeing of children born through surrogacy arrangements 35 Breaking the child’s bond with the birth mother 35 Being raised by ‘non-biological’ parents 36 Complex family structures and ‘genealogical bewilderment’ 39 Health risks through the use of ART 41 Surrogacy as social experimentation 42 Issues relating to the birth mother 43 The birth mother’s motivation 43 Ability to give informed consent 44 Failure to relinquish 45 Psychological damage to the birth mother and her family 46 Issues relating to the intending parents 48 Committee comment 48 Chapter 4 The role for the NSW Government in regulating altruistic surrogacy 51 Incidence of altruistic surrogacy arrangements in NSW 51 The role of the state in people’s private lives 52 The possible effect of regulation 53 The extent of regulation required 54 The interplay between state and federal legislation in relation to surrogacy arrangements 57 Existing guidelines and policies relating to altruistic surrogacy 58 The adequacy of existing guidelines and policies 62 Uniform national legislation 65 Report 38 - May 2009 vii LEGISLATIVE COUNCIL Legislation on altruistic surrogacy in NSW Committee comment 66 Chapter 5 Criteria for intending parents and birth mothers 69 Criteria applying to all parties 69 Counselling 69 Legal advice 76 Relationship between birth mother and intending parents 78 Criminal record check 80 Requirement to use ART through a registered clinic 81 Criteria applying to intending parents 82 Infertility 82 Age and duration of relationship 84 The intending parents’ genetic connection to the child 84 Access for same-sex couples, unmarried couples and single people 86 Committee comment 88 Criteria applying to the birth mother 89 Age 89 Previous children 90 The birth mother’s genetic connection to the child (gestational surrogacy Vs traditional surrogacy) 91 Committee comment 92 Chapter 6 Legal rights and responsibilities 95 Surrogacy agreements 95 Unenforceability 95 Approval by a regulatory body 97 Rights of parties during the pregnancy and birth 99 Advertising and brokerage services 99 Committee comment 100 Reimbursement of expenses to the birth mother 101 Commercial surrogacy 102 Defining ‘reasonable expenses’ 103 Committee comment 106 Parentage presumptions and the transferral of parentage 107 Current situation in NSW 107 Parenting orders 108 Adoption 109 A transferral of parentage mechanism specifically for surrogacy arrangements 115 Committee comment 118 Genetic information and the format of birth certificates 121 The importance of knowing genetic origins 122 Storing genetic information 122 Information recorded on birth certificates 123 viii Report 38 - May 2009 STANDING COMMITTEE ON LAW AND JUSTICE Committee comment 124 Conscientious objection 126 Committee comment 127 Appendix 1 Submissions 129 Appendix 2 Witnesses at hearings 131 Appendix 3 Tabled documents 133 Appendix 4 Minutes 135 Appendix 5 Dissenting statements 169 Report 38 - May 2009 ix LEGISLATIVE COUNCIL Legislation on altruistic surrogacy in NSW Chair’s foreword The practice of surrogacy, altruistic or commercial, is a contentious and divisive issue, one that gives rise to diverse and often irreconcilable views. Furthermore, these views are typically grounded in deeply held convictions about reproduction and family formation, and religious and ethical standpoints. I would like, at the outset, to acknowledge this diversity of views and the fact that the Committee itself is divided with regard to the views of its members. In relation to regulation of the practice of altruistic surrogacy in NSW, it is unfortunately the case that whatever position the Government takes will be unpopular with some parties. Currently, there is very limited regulation of the practice of altruistic surrogacy in NSW. The regulations that are either directly or indirectly related to surrogacy are contained in separate pieces of legislation, including the Assisted Reproductive Technology Act 2007 (NSW), the Status of Children Act 1996 (NSW), and the Adoption Act 2000 (NSW). In addition, the National Health and Medical Research Council issues guidelines for artificial reproductive technology clinics, and individual clinics can develop their own internal guidelines applicable to surrogacy arrangements. There was consensus amongst inquiry participants and the Committee that the best interests of the child were the paramount consideration in relation to the practice of surrogacy. In this respect, the Committee came to the view that its primary obligation is to protect the best interests of children who are born through surrogacy arrangements by removing, where possible,